Worcester County, MD Chesapeake Bay Critical Area

Intent. In 1984, the Maryland General Assembly passed the Chesapeake Bay Critical Area Act[1] in response to growing concern over the decline of the quality and productivity of the waters of the Chesapeake Bay and its tributaries. The decline was found to have resulted, in part, from the cumulative effects of human activity that caused increased levels of pollutants, nutrients, and toxins, and also from declines in protective land uses such as forest land and agricultural land in the Bay region.

Editor's Note: See Natural Resources Article of the Annotated Code of Maryland, § 8-1801 et seq.

Purpose. The General Assembly enacted the Critical Area Act for the following purposes:

To establish a resource protection program for the Chesapeake Bay and its tributaries by fostering more sensitive development activity for certain shoreline areas so as to minimize impacts to water quality and natural habitats; and

To implement a resource protection program on a cooperative basis between the state and affected local governments, with local governments establishing and implementing their programs in a consistent and uniform manner subject to state criteria and oversight.

Goals. The goals of the Critical Area Program are to accomplish the following:

Minimize adverse impacts on water quality that result from pollutants that are discharged from structures or run off from surrounding lands;

Conserve fish, wildlife, and plant habitat; and

Establish land use policies for development in the Chesapeake Bay Critical Area which accommodate growth as well as address the environmental impacts that the number, movement, and activities of people may have on the area.

Citing. This Subtitle may be cited as the "Worcester County Chesapeake Bay Critical Area Ordinance."

Implementation. Worcester County adopted its Critical Area Program on May 30, 1990. The Program consists of this Subtitle, the County's Critical Area maps, the County's Zoning and Subdivision Control Article, and any other portion of the Code of Public Local Laws of Worcester County, Maryland, found to be applicable. These provisions regulate development activities and resource utilization activities, e.g., agriculture and forestry, within the Critical Area. They supplement existing land use regulations by imposing specific standards and requirements as set forth in the Critical Area Criteria. Compliance with this Subtitle does not imply compliance with any other local, state or federal law and does not remove responsibility for compliance with such laws.

Territory affected. Within Worcester County, the Chesapeake Bay Critical Area shall mean all lands and waters defined in § 8-1807 of the Natural Resources Article, Annotated Code of Maryland. They include:

All waters of and lands under the Chesapeake Bay and its tributaries to the head of tide as indicated on the state wetlands maps, and all state and private wetlands designated under Title 9 of the Natural Resources Article, Annotated Code of Maryland.

All land and water areas within one thousand feet beyond the landward boundaries of state or private wetlands and the heads of tides designated under Title 9 of the Natural Resources Article, Annotated Code of Maryland.

(g)

Description. The Critical Area of Worcester County contains approximately fourteen thousand acres. Of this area about nine thousand six hundred acres is in uplands excluding the uplands of the adjacent incorporated towns of Pocomoke City and Snow Hill.

(h)

Severability. Should any section or provision of this Subtitle be declared by the courts to be unconstitutional or invalid, such decision shall not affect the validity of the Subtitle as a whole or any part thereof other than the part so declared to be unconstitutional or invalid.

§ NR 3-202 Definitions.

ANADROMOUS FISH PROPAGATION WATERS

Applicability. The following words have the following meanings for the purposes of implementing the Critical Area Program and this Subtitle but shall not be applicable to other portions of the Code of Public Local Laws of Worcester County, Maryland:

AFFORESTATION

The establishment of a tree crop on an area from which it has always or very long been absent, or the planting of open areas which are not presently in forest cover.

AGRICULTURAL EASEMENT

A non-possessory interest in land which restricts the conversion of use of the land, preventing non-agricultural uses.

AGRICULTURE

All methods of production and management of livestock, crops, vegetation, and soil. This includes, but is not limited to, the related activities of tillage, fertilization, pest control, harvesting, and marketing. It also includes, but is not limited to, the activities of feeding, housing, and maintaining of animals such as cattle, dairy cows, sheep, goats, hogs, horses, and poultry and handling their by-products.

ANADROMOUS FISH

Fish that travel upstream (from their primary habitat in the ocean) to freshwater in order to spawn.

Those streams that are tributary to the Chesapeake Bay where spawning of anadromous species (e.g., rockfish or striped bass, yellow perch, white perch, shad and river herring) occurs or has occurred. Under this definition, the entire Pocomoke River System in the Critical Area is classified as anadromous fish propagation waters.

AQUACULTURE

(a) Farming or culturing of finfish, shellfish, other aquatic plants or animals or both, in lakes, streams, inlets, estuaries, and other natural or artificial water bodies or impoundments; (b) activities include hatching, cultivating, planting, feeding, raising, and harvesting of aquatic plants and animals and the maintenance and construction of necessary equipment, buildings, and growing areas; and (c) cultivation methods include, but are not limited to, seed or larvae development and grow out facilities, fish ponds, shellfish rafts, rack and longlines, seaweed floats and the culture of clams and oysters on tidelands and subtidal areas. For the purpose of this definition, related activities such as wholesale and retail sales, processing and product storage facilities are not considered aquacultural practices.

AREAS OF THREATENED AND ENDANGERED SPECIES

Those areas where these species, as designated by the Secretary of the Department of Natural Resources, are found or have historically been found and their surrounding habitats.

AREAS WITH SPECIES IN NEED OF CONSERVATION

Those areas where these species, as designated by the Secretary of the Department of Natural Resources, are found or have historically been found and their surrounding habitats.

BARREN LAND

Unmanaged land having sparse vegetation.

BEST MANAGEMENT PRACTICES (BMPS)

Conservation practices or systems of practices and management measures that control soil loss and reduce water quality degradation caused by nutrients, animal waste, toxics and sediment. Agricultural BMPs include, but are not limited to, strip cropping, terracing, contour stripping, grass waterways, animal waste structures, ponds, minimal tillage, grass and naturally vegetated filter strips, and proper nutrient application measures.

BONA FIDE INTRAFAMILY TRANSFER

A transfer to a member of the owner's immediate family of a portion of the owner's property for the purpose of establishing a residence for that family member.

BUFFER

An existing, naturally vegetated area or an area established in native vegetation and managed to protect aquatic, wetland, shoreline and terrestrial environments from man-made disturbances.

CLEARCUTTING

The removal of an entire stand of trees in one cutting with tree reproduction obtained by natural seeding from adjacent stands or from trees that were cut from advanced regeneration or stump sprouts or from planting of seeds or seedlings by man.

CLUSTER DEVELOPMENT

A residential development in which dwelling units are concentrated in a selected area or selected areas of the development tract so as to provide natural habitat or other open space uses on the remainder.

COLONIAL NESTING WATER BIRDS

Herons, egrets, terns, glossy ibis and other such birds that for the purpose of nesting congregate (that is colonize) in a limited number of areas which can be susceptible to local disturbances.

COMMERCIAL HARVESTING

A commercial operation that would alter the existing composition or profile, or both, of a forest, including all commercial cutting operations done by companies and private individuals for economic gain.

COMMISSION

The Chesapeake Bay Critical Area Commission.

COMMUNITY PIERS

Boat docking facilities associated with subdivisions or similar residential areas, and with condominium, apartment and other multiple-family dwelling units. Individual private piers are excluded from this definition.

COMPREHENSIVE OR MASTER PLAN

A compilation of policy statements, goals, standards, maps and pertinent data relative to the past, present and future trends of the local jurisdiction including, but not limited to, its population, housing, economics, social patterns, land uses, water resources and their use, transportation facilities and public facilities prepared by or for the Planning Commission and County Commissioners.

CONSERVATION EASEMENT

A non-possessory interest in land which restricts the manner in which the land may be developed in an effort to reserve natural resources for future use.

COVER CROP

The establishment of a vegetative cover to protect soils from erosion and to restrict pollutants from entering the waterways. Cover crops can be dense, planted crops of grasses or legumes, or crop residues such as corn, wheat or soybean stubble which maximize infiltration and prevent runoff from reaching erosive velocities.

CRITICAL AREA

All lands and waters defined in § 8-1807 of the Natural Resources Article, Annotated Code of Maryland, as may be amended from time to time. They include:

All waters of and lands under the Chesapeake Bay and its tributaries to the head of tide as indicated on the state wetlands maps and all state and private wetlands designated under Title 9 of the Natural Resources Article, Annotated Code of Maryland; and

DOCUMENTED BREEDING BIRD AREAS

DENSITY

The number of dwelling units within a defined and measurable area expressed in units per acre.

DEVELOPED WOODLANDS

Those areas of one acre or more in size which predominantly contain trees and natural vegetation and which also include residential, commercial, or industrial structures and uses.

DEVELOPMENT ACTIVITIES

The construction or substantial alteration of residential, commercial, industrial, institutional or transportation facilities or structures.

Forested areas where the occurrence of interior dwelling birds, during the breeding season, has been demonstrated as a result of on-site surveys using standard biological survey techniques.

DWELLING UNIT

A single unit providing complete, independent living facilities for at least one person, including permanent provisions for sanitation, cooking, eating, sleeping, and other activities routinely associated with daily life. A dwelling unit may include a living quarters for a domestic or other employee or tenant, an in-law or accessory apartment, a guest house, or a caretaker residence.

[Added 9-21-2004 by Bill No. 04-7]

ECOSYSTEM

A more or less self-contained biological community together with the physical environment in which the community's organisms occur.

ENDANGERED SPECIES

Any species of fish, wildlife, or plants which have been designated as such by regulation by the Secretary of the Department of Natural Resources. Designation occurs when the continued existence of these species as viable components of the state's resources are determined to be in jeopardy. This includes any species determined to be an endangered species pursuant to the Federal Endangered Species Act, 16 U.S.C. § 1531 et seq., as amended.

EXCESS STORMWATER RUN-OFF

All increases in stormwater resulting from:

An increase in the imperviousness of the site, including all additions to buildings, roads, and parking lots;

Changes in permeability caused by compaction during construction or modifications in contours, including the filling or drainage of small depression areas;

Alteration of drainageways, or regrading of slopes;

Destruction of forest or developed woodlands; or

FOREST INTERIOR DWELLING BIRDS

Installation of collection systems to intercept street flows or to replace swales or other drainageways.

FISHERIES ACTIVITIES

Commercial water-dependent fisheries facilities including structures for the parking, processing, canning, or freezing of finfish, crustaceans, mollusks, and amphibians and reptiles and also including related activities such as wholesale and retail sales product storage facilities, crab shedding, off-loading docks, shellfish culture operations, and shore-based facilities necessary for aquacultural operations.

FOREST

A biological community dominated by trees and other woody plants covering a land area of one acre or more. This also includes forests that have been cut, but not cleared.

Species of birds which require relatively large forested tracts in order to breed successfully (for example, various species of flycatchers, warblers, vireos, and woodpeckers).

FOREST MANAGEMENT

The protection, manipulation, and utilization of the forest to provide multiple benefits, such as timber harvesting, water transpiration, wildlife habitat, etc.

FOREST PRACTICE

The alteration of the forest either through tree removal or replacement in order to improve the timber, wildlife, recreational, or water quality values.

GROWTH ALLOCATION

The number of acres of land in the Chesapeake Bay Critical Area that a local jurisdiction may use to create new Intensely Developed Areas and Limited Development Areas.

HIGHLY ERODIBLE SOILS

Those soils with a slope greater than fifteen percent; or those soils with a K value greater than thirty-five hundredths and with slopes greater than five percent.

HISTORIC WATERFOWL STAGING AND CONCENTRATION AREA

An area of open water and adjacent marshes where waterfowl gather during migration and throughout the winter season. These areas are historic in the sense that their location is common knowledge and because these areas have been used regularly during recent times.

HYDRIC SOILS

Soils that are wet frequently enough to periodically produce anaerobic conditions, thereby influencing the species composition or growth, or both, of plants on those soils.

HYDROPHYTIC VEGETATION

Those plants cited in "Vascular Plant Species Occurring in Maryland Wetlands" (Dawson, F. et al., 1985) which are described as growing in water or on a substrate that is at least periodically deficient in oxygen as a result of excessive water content (plants typically found in water habitats).

IMMEDIATE FAMILY

A father, mother, son, daughter, grandfather, grandmother, grandson or granddaughter.

K VALUE

The soil erodibility factor in the universal soil loss equation. It is a quantitative value that is experimentally determined.

LAND-BASED AQUACULTURE

The raising of fish or shellfish in any natural or man-made, enclosed or impounded, water body.

LAND CLEARING

Any activity that removes the vegetative ground cover.

LANDFORMS

Features of the earth's surface created by natural causes.

MARINA

Any facility for the mooring, berthing, storing, or securing of watercraft, but not including community piers, piers serving single-family dwellings and other non-commercial boat docking and storage facilities.

MATURE TREE

A large woody plant having one or several self-supporting stems or trunks and numerous branches that reach a height of at least twenty feet at maturity.

MEAN HIGH WATER LINE (MHWL)

The average level of high tides at a given location.

NATURAL FEATURES

Components and processes present in or produced by nature, including, but not limited to, soil types, geology, slopes, vegetation, surface water, drainage patterns, aquifers, recharge areas, climate, floodplains, aquatic life, and wildlife.

NATURAL HERITAGE AREA

Any community of plants or animals which is considered to be among the best statewide examples of its kind, and is designated by regulation by the Secretary of the Department of Natural Resources.

NATURAL VEGETATION

Those plant communities that develop in the absence of human activities.

NATURE DOMINATED

A condition where landforms or biological communities, or both, have developed by natural processes in the absence of human activities.

NON-POINT SOURCE POLLUTION

Pollution generated by diffuse land use activities rather than from an identifiable or discrete facility. It is conveyed to waterways through natural processes, such as rainfall, storm runoff, or groundwater seepage rather than by deliberate discharge. Non-point source pollution is not generally corrected by end-of-pipe treatment, but rather by changes in land management practices.

NON-RENEWABLE RESOURCES

Resources that are not naturally regenerated or renewed.

NON-TIDAL WETLANDS

Those lands in the Critical Area, excluding tidal wetlands regulated under Title 9 of the Natural Resources Article, Annotated Code of Maryland, where the water table is usually at or near the surface, or lands where the soil or substrate it covered by shallow water at some time during the growing season. These regulations apply to the palustrine class of non-tidal wetlands as defined in "Classification of Wetlands and Deepwater Habitats of the United States" (Publication FWS/OBS 79/31, December 1979) and as identified on the Natural Wetlands Inventory maps, or which may be identified by site survey at the time of application for a developmental activity. These lands are usually characterized by one or both of the following:

At least periodically, the lands support predominantly hydrophytic vegetation;

The substrate is predominantly undrained hydric soils.

OFFSETS

Structures or actions that compensate for undesirable impacts.

OPEN SPACE

Land and water areas retained in an essentially undeveloped state.

OVERBURDEN

The strata or material in its natural state, before its removal by surface mining, overlying a mineral deposit, or in between mineral deposits.

PALUSTRINE

All non-tidal wetlands dominated by trees, shrubs, persistent emergent plants, or emergent mosses or lichens and all such wetlands that occur in tidal areas where the salinity due to ocean-derived salts is below one-half part per one thousand parts of water.

PHYSIOGRAPHIC FEATURES

The soils, topography, land slope and aspect, and local climate that influence the form and species composition of plant communities.

PIER

Any pier, wharf, dock, walkway, bulkhead, breakwater, piles or other similar structure. "Pier" does not include any structure on pilings or stilts that was originally constructed beyond the landward boundaries of state or private wetlands.

PLANT HABITAT

A community of plants commonly identifiable by the composition of its vegetation and its physiographic characteristics.

PORT

A facility or area established or designated by the state or local jurisdictions for purposes of waterborne commerce.

PRIVATE HARVESTING

The cutting and removal of trees for personal use.

PROGRAM AMENDMENT

Any change to an adopted program that the Commissioners determine will result in a use of land or water in the Chesapeake Bay Critical Area in a manner not provided for in the adopted program.

"Program amendment" includes a change to a Zoning Map that is not consistent with the method for using the growth allocation contained in an adopted program.

PROGRAM REFINEMENT

Any change to an adopted program that the Commissioners determine will result in a use of land or water in the Chesapeake Bay Critical Area in a manner consistent with the adopted program.

PUBLIC WATER-ORIENTED RECREATION

"Program refinement" includes:

A change to a Zoning Map that is consistent with the development area designation of an adopted program.

The use of the growth allocation in accordance with an adopted program.

PROJECT APPROVAL

The approval of development, other than development by the state or local government, in the Chesapeake Bay Critical Area by the appropriate local approval authority. The term includes approval of subdivision plats and site plans; inclusion of areas within floating zones; issuance of variances, special exceptions or expansions of non-conformities; and issuance of zoning permits. The term does not include building permits.

Shore-dependent recreation facilities or activities provided by public agencies which are available to the general public.

RECLAMATION

The reasonable rehabilitation of disturbed land for useful purposes, and the protection of the natural resources of adjacent areas, including waterbodies.

REDEVELOPMENT

The process of developing land which is or has been developed.

REFORESTATION

The establishment of a forest through artificial reproduction or natural regeneration.

RENEWABLE RESOURCE

A resource that can renew or replace itself and, therefore, with proper management, can be harvested indefinitely.

RIPARIAN HABITAT

A habitat that is strongly influenced by water and which occurs adjacent to streams, shorelines, and wetlands.

SEASONALLY FLOODED WATER REGIME

A condition where surface water is present for extended periods, especially early in the growing season, and when surface water is absent, the water table is often near the land surface.

SELECTION

The removal of single, scattered, mature trees or other trees from uneven-aged stands by frequent and periodic cutting operations.

SHORELINE EROSION PROTECTION WORKS

Those structures or measures constructed or installed to prevent or minimize erosion of the shoreline in the Critical Area.

SIGNIFICANTLY ERODING AREAS

Areas that erode two feet or more per year.

SOIL CONSERVATION AND WATER QUALITY PLANS

Land use plans for farms that show farmers how to make the best possible use of their soil and water resources while protecting and conserving those resources for the future. It is a document containing a map and related plans that indicate:

How the landowner plans to treat a farm unit;

Which best management practices the landowner plans to install to treat undesirable conditions; and

SPECIES IN NEED OF CONSERVATION

The schedule for applying those best management practices.

Those fish and wildlife whose continued existence as part of the State's resources are in question and which may be designated by regulation by the Secretary of Natural Resources as in need of conservation pursuant to the requirements of Natural Resources Articles, §§ 10-2A-03 and 4-2A-03, Annotated Code of Maryland.

SPOIL PILE

The overburden and reject materials as piled or deposited during surface mining.

STEEP SLOPES

Slopes of fifteen percent or greater incline.

THINNING

A forest practice used to accelerate tree growth of quality trees in the shortest interval of time by the selective removal of certain trees.

THREATENED SPECIES

Any species of fish, wildlife, or plants designated as such by regulation by the Secretary of the Department of Natural Resources which appear likely, within the foreseeable future, to become endangered, including any species of wildlife or plant determined to be a threatened species pursuant to the Federal Endangered Species Act, 16 U.S.C. § 1531 et seq., as amended.

TOPOGRAPHY

The existing configuration of the earth's surface including the relative relief, elevation, and position of land features.

TRANSITIONAL HABITAT

A plant community whose species are adapted to the diverse and varying environmental conditions that occur along the boundary that separates aquatic and terrestrial areas.

TRANSPORTATION FACILITIES

Anything that is built, installed, or established to provide a means of transport from one place to another.

TRIBUTARY STREAMS

Those perennial and intermittent streams in the Critical Area which are so noted on the most recent U.S. Geological Survey 7 1/2 minute topographic quadrangle maps (scale 1:24,000) or on more detailed maps or studies at the discretion of the local jurisdictions.

UNWARRANTED HARDSHIP

A situation wherein without a variance, an applicant would be denied reasonable and significant use of the entire parcel or lot for which the variance is requested.

[Added 9-21-2004 by Bill No. 04-7]

UTILITY TRANSMISSION FACILITIES

Fixed structures that convey or distribute resources, wastes, or both, including but not limited to electrical lines, water conduits and sewer lines.

WASH PLANT

A facility where sand and gravel is washed during processing.

WATER-BASED AQUACULTURE

The raising of fish and shellfish in any natural, open, free-flowing water body.

WATER-DEPENDENT FACILITIES

Those structures or works associated with industrial, maritime, recreational, educational or fisheries activities that require location at or near the shoreline within the buffer specified in § NR 3-219 of this Subtitle. An activity is water-dependent if it cannot exist outside the buffer and is dependent on the water by reason of the intrinsic nature of its operation.

WATERFOWL

Birds which frequent and often swim in water, nest and raise their young near water, and derive at least part of their food from aquatic plants and animals.

WATER-USE INDUSTRY

An industry that requires location near the shoreline because it utilizes surface waters for cooling or other internal purposes.

WILDLIFE CORRIDOR

A strip of land having vegetation that provides habitat and safe passage for wildlife.

WILDLIFE HABITAT

Those plant communities and physiographic features that provide food, water and cover, nesting, and foraging or feeding conditions necessary to maintain populations of animals in the Critical Area.

§ NR 3-203 Development in Critical Area.

Generally. In order to accommodate already existing land uses and growth in the Worcester County Critical Area while providing for the conservation of habitat and the protection of water quality, the County has set out three land use management districts within the Critical Area. The Critical Area has also been defined as an Overlay Zoning District in the County Zoning Ordinance. The County has identified each of the three subdistricts within the Critical Area based on the following criteria and has developed policies and programs to achieve the objectives as proposed by the County Program. The County recognizes the following three types of development areas:

	Intensely Developed Areas (IDAs);
	Limited Development Areas (LDAs); and
	Resource Conservation Areas (RCAs).

While any intense development should be directed outside of the Critical Area, future intense development activities, when proposed in the Critical Area, shall be directed towards the Intensely Developed Areas.

Additional low-intensity development may be permitted in the Limited Development areas, but shall be subject to strict regulation to prevent adverse impacts on habitat and water quality.

Development shall be limited in the Resource Conservation Area, which shall be chiefly designated for agriculture, forestry, fisheries activities, other resource utilization activities and for habitat protection.

Implementation. For purposes of implementing this regulation, the County has determined, based on land uses and development in existence on December 1, 1985, which land areas fall within the three types of land management and development areas described in this program. These three types of land management and development areas are designated on sets of maps on file in the County Department of Development Review and Permitting or its successor. These maps include Department of Natural Resources Wetland Maps dated 1972 at a scale of one inch equals two hundred feet and Resource Inventory Maps dated 1989 at a scale of one inch equals six hundred feet and are the official Worcester County Critical Area Maps.

Activities not permitted except in IDA. Certain new development, redevelopment or expanded activities or facilities, because of their intrinsic nature or because of their potential for adversely affecting habitats or water quality, may not be permitted in the Critical Area except in Intensely Developed Areas under regulations of this section and only after the activity or facility has demonstrated to all appropriate local and state permitting agencies that there will be a net improvement in water quality to the adjacent body of water. These activities include the following:

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); or

Permanent sludge handling, storage and disposal facilities, other than those associated with wastewater treatment facilities. However, agricultural or horticultural use of sludge under appropriate approvals when applied by an approved method at approved application rates may be permitted in the Critical Area, except in the one-hundred-foot-buffer;

The County may preclude additional development activities that it considers detrimental to water quality or fish, wildlife, or plant habitats within the Critical Area.

Activities not permitted. Certain new development activities or facilities, or the expansion of certain existing facilities, because of their intrinsic nature or because of their potential for adversely affecting habitat and water quality, may not be permitted in the Chesapeake Bay Critical Area unless no environmentally acceptable alternative exists outside of the Chesapeake Bay Critical Area, and these development activities or facilities are needed in order to correct an existing water quality or wastewater management problem. These include:

[Amended 10-24-2006 by Bill No. 06-11]

Solid or hazardous waste collection or disposal facilities, including transfer stations;

Sanitary landfills; or

Sewage sludge composting, storage or disposal facilities or land application.

Continuation of existing, permitted facilities. Existing, permitted facilities of the type noted in § NR 3-203(d)(1) and (2), above shall be subject to the standards and requirements of the Department of the Environment, under COMAR Title 26.

§ NR 3-204 Intensely Developed Areas.

Description. Areas where residential, commercial, institutional, and/or industrial developed uses predominate and where relatively little natural habitat occurs. At the time of the initial mapping, these areas shall have had at least one of the following features:

Housing density equal to or greater than four dwelling units per acre;

Industrial, institutional or commercial uses are concentrated in the area; or

Public sewer and water collection and distribution systems are currently serving the area and housing density is greater than three dwelling units per acre;

In addition, these features shall be concentrated in an area of at least twenty adjacent acres or that entire upland portion of the Critical Area within the boundary of a municipality, whichever is less.

General requirements. The Critical Area Subtitle for Worcester County hereby incorporates the following requirements for Intensely Developed Areas. New or expanded development or redevelopment shall take place in such a way as to:

Improve the quality of runoff from developed areas that enters the Chesapeake Bay or its tributary streams;

Accommodate additional development of the type and intensity designated by the County in this Program, provided that water quality is not impaired;

Minimize the expansion of Intensely Developed Areas into portions of the Critical Area designated as habitat protection areas and Resource Conservation Areas under this Program;

Conserve and enhance habitat protection areas to the extent possible within Intensely Developed Areas; and

Encourage the use of retrofitting measures to address existing stormwater management problems.

Development standards. The following criteria are hereby adopted for Intensely Developed Areas:

All plans shall be assessed for their impacts on water quality and other biological resources.

Urban best management practices shall be considered and, where appropriate, implemented as part of all plans for development or redevelopment.

Development and redevelopment shall be subject to the habitat protection area requirements prescribed in §§ NR 3-218 and 3-219 in this Subtitle.

Stormwater shall be addressed in accordance with the following provisions:

At the time of development or redevelopment, technologies as required by applicable state and local ordinances shall be applied by anyone undertaking development activities in order to minimize adverse impacts to water quality caused by stormwater.

In the case of redevelopment, if these technologies do not reduce pollutant loadings measured by use of the keystone pollutant method by at least ten percent below the level of pollution on the site prior to redevelopment, then offsets shall be provided.

In the case of new development, offsets as determined by the County shall be used if they reduce pollutant loadings by at least ten percent of the pre-development levels.

Offsets may be provided either on- or off-site, provided that water quality benefits are equivalent, that the benefits are obtained within the same watershed, and that the benefits can be determined through the use of modeling, monitoring or other computation of mitigation measures as specified in the "10% Rule Compliance - Urban Stormwater Quality Guidance for Maryland Chesapeake Bay Critical Area."

If practicable, permeable areas shall be established in vegetation and whenever possible, redevelopment shall reduce existing levels of pollution.

Areas of public access to the shoreline, such as foot paths, scenic drives and other public recreational facilities, should be maintained and, if possible, encouraged to be established within Intensely Developed Areas.

Ports and industries which use water for transportation and derive economic benefits from shore access shall be located near existing port facilities. The County may identify other sites for planned future port facility development and use if this use will provide significant economic benefit to the state or County and is consistent with the provisions of the water-dependent facilities section[1] of this Subtitle and other state and federal regulations.

Editor's Note: See § NR 3-223, Water-dependent facilities.

The County shall promote, with the assistance from state agencies, participation in programs and activities for the enhancement of biological resources within the Critical Area for their positive effects on water quality and urban wildlife habitat. These programs may include urban forestry, landscaping, gardens, wetland and aquatic habitat restoration elements.

To the extent practicable, future development in the Critical Area shall use cluster development as a means to reduce impervious areas and to maximize areas of natural vegetation.

When the cutting or clearing of trees in forests and developed woodland areas is associated with current or planned development activities, the following shall be required:

Development activities shall be designed and implemented to minimize destruction of forest and woodland vegetation; and

Development activities shall address the protection of existing forests and developed woodlands identified as habitat protection areas in the habitat protection sections[2] of this Subtitle.

[2]

Editor's Note: See §§ NR 3-218, Habitat protection, and NR 3-219, One-hundred-foot buffer.

§ NR 3-205 Limited Development Areas.

Description. Limited Development Areas are those areas which are currently developed in low- or moderate-intensity uses. They also contain areas of natural plant and animal habitats. The quality of runoff from these areas has not been substantially altered or impaired. At the time of the initial mapping, these areas shall have had at least one of the following features:

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

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

Areas meeting the conditions of Intensely Developed Area but comprising less than twenty acres;

Areas having public sewer or public water, or both.

General requirements. The County's Critical Area Subtitle hereby incorporates the following requirements for Limited Development Areas. New or expanded development or redevelopment shall take place in such a way as to:

Maintain, or, if possible, improve the quality of runoff and groundwater entering the Chesapeake Bay and its tributaries;

Maintain, to the extent practicable, existing areas of natural habitat; and

Accommodate additional low- or moderate-intensity development if:

This development conforms to the water quality and habitat protection criteria in Subsection (c) below; and

The overall intensity of development within the Limited Development Area is not increased beyond the level established in a particular area so as to change its prevailing character as identified by density and land use currently established in the area.

Development standards. The following criteria are hereby adopted for Limited Development Areas:

For all development activities in the Limited Development Areas, the County shall require that the applicant identify any environmental or natural feature described below, and shall meet all of the following standards of environmental protection:

Adherence to the provisions of §§ NR 3-218, 3-219, 3-224, and 3-225 of this Subtitle.

Roads, bridges, or utilities may not be located in any habitat protection area unless no feasible alternative exists. 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 and minimize negative impacts to wildlife, aquatic life and their habitats and maintain hydrologic processes and water quality.

All development activities that must cross or affect streams 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.

All development sites shall incorporate a wildlife corridor system that connects the largest undeveloped or most vegetative tracts of land within and adjacent to the site in order to provide continuity of existing wildlife and plant habitats with off-site habitats. The wildlife corridor system may include habitat protection areas identified in this Subtitle. The County shall ensure the maintenance of the wildlife corridors by requiring the establishment of conservation easements, restrictive covenants, or similar instruments approved by the County Commissioners through which the corridor is preserved by public or private groups, including homeowners' associations, nature trusts and other organizations.

For the cutting or clearing of trees in forests and developed woodland areas which are associated with current or planned development activities in a Limited Development Area, the County shall:

Require that the applicant seek the comments of and comply with the recommendations of the Maryland Department of Natural Resources when planning development on forested land to the extent possible;

Design and implement development activities to minimize the destruction of woodland vegetation; and

Provide protection for forests and developed woodlands identified as habitat protection areas in this Program.

For the alteration of forest and developed woodland in the Limited Development Area, the County shall apply all of the following requirements:

The total acreage in forest coverage within the County in the Critical Area shall be maintained or preferably increased;

All forests that are allowed to be cleared or developed shall be replaced in the Critical Area on not less than an equal area basis;

No more than twenty percent of any forest or developed woodland may be removed from forest use, except as provided in Subsection (c)(4) below. The remaining eighty percent shall be maintained through recorded, restrictive covenants or similar instruments approved by the County Commissioners; and

Developed woodland vegetation shall be conserved to the greatest extent practicable.

For replacement of forest and developed woodland, if more than twenty percent is to be removed from forest use, an applicant may clear or develop not more than thirty percent of the total forest area, provided that the afforested area shall consist of one and five-tenths times the total surface acreage of the disturbed forest or developed woodland area, or both.

In addition, applicants shall adhere to the following criteria for forest and woodland development:

A performance bond in an amount determined by the County to assure satisfactory replacement as required by Subsection (c)(3) and (4) above;

If applicable, a stormwater management permit and sediment and erosion control plan approval shall be required before forest or developed woodland is cleared;

Forests which have been cleared before obtaining a stormwater management permit and sediment and erosion control plan approval or that exceed the maximum area allowed in Subsection (c)(4) above shall be replanted at three times the areal extent of the cleared forest;

If the areal extent of the site limits the application of the reforestation guidelines in Subsection (c)(3), (4) and (5) above, alternative provisions or reforestation guidelines may be permitted by the County if they are consistent with the intent of the forest and woodland element of this Program to conserve the forest and developed woodland resources of the Critical Area. Alternative provisions may include fees-in-lieu provisions or use of a forest mitigation bank if the provisions are adequate to ensure the restoration or establishment of an equivalent forest area;

If no forest exists on the proposed development site, this site shall be planted to provide a forest or developed woodland cover of at least fifteen percent;

All forests designated on development plans shall be maintained to the extent practicable, through conservation easements, restrictive covenants or other protective instruments approved by the County Attorney;

The applicant shall designate, subject to the approval of the County, a new forest area on a part of the site not forested; and

The afforested area shall be maintained as forest cover through easements, restrictive covenants or other protective instruments approved by the County Commissioners.

Applicants shall adhere to the following standards for development on steep slopes. Development on slopes greater than fifteen percent, 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 policies in § NR 3-205(b) above.

Except as otherwise provided in this subsection, for stormwater runoff, impervious areas shall be limited to fifteen percent of the site.

If a parcel or lot of one-half acre or less in size existed on or before December 1, 1985, then man-made impervious surfaces are limited to twenty-five percent of the parcel or lot.

If a parcel or lot greater than one-half acre and less than one acre in size existed on or before December 1, 1985, then man-made impervious surfaces are limited to fifteen percent of the parcel or lot.

If an individual lot one acre or less in size is part of a subdivision approved after December 1, 1985, then man-made impervious surfaces of the lot may not exceed twenty-five percent of the lot, and the total impervious surfaces of the entire subdivision may not exceed fifteen percent.

Impervious surface limits provided in Subsection (c)(7)A through C above may be exceeded, upon findings by the Director of Development Review and Permitting or his designee that the following conditions exist:

New impervious surfaces on the property have been minimized;

For a lot or parcel one-half acre or less in size, total impervious surface area does not exceed impervious surface limits in Subsection (c)(7)A by more than twenty-five percent or five hundred square feet, whichever is greater;

For a lot or parcel greater than one-half acre and less than one acre in size, total impervious surface area does not exceed impervious surface limits in Subsection (c)(7)B or five thousand four hundred and forty-five square feet, whichever is greater;

Water quality impacts associated with runoff from new impervious surfaces can be and have been minimized through site design considerations or the use of best management practices to improve water quality; and

The property owner performs on-site mitigation to offset potential adverse water quality impacts from the new impervious surfaces or the property owner pays a fee to the County in lieu of performing the on-site mitigation. Such a fee is established by resolution of the County Commissioners and may be amended from time to time. The County shall use all fees collected under this provision to fund projects that improve water quality within the Critical Area, consistent with the County's Critical Area Program and Zoning Ordinance.

To reduce the extent of impervious areas and maximize areas of natural vegetation, cluster development shall be considered when planning for future development.

Development may be allowed on soils having development constraints if the development includes mitigation measures that adequately address the identified constraints and that will not have significant adverse impacts on water quality or plant, fish or wildlife habitat.

Requests for modifications in road construction standards may be made to the County Commissioners on a case-by-case basis in order to reduce the potential impacts to the site and Critical Area resources from impervious surfaces.

Complementary state laws and regulations. In applying this Critical Area Subtitle, the County refers to all of the following complementary existing state laws and regulations:

For soil erosion and sediment control (COMAR 26.17.01):

In order to prevent soil erosion and sedimentation, a soil erosion and sedimentation control plan shall be required whenever a development within the Critical Area will involve any clearing, grading, transporting, or other form of disturbance to land by the movement of earth. This plan shall be consistent with the requirements of Natural Resources Article § § 8-1101 through 8-1108 and Environment Article §§ 4-103 through 4-108 and 4-116, Annotated Code of Maryland, and local ordinances, as may be amended from time to time. Sediment control practices shall be appropriately designed to reduce adverse water quality impacts.

The County requires erosion control as the basis of sediment control plans within the Critical Area.

For stormwater runoff (COMAR 26.17.02):

Development may not cause downstream property, watercourses, channels or conduits to receive stormwater runoff at a higher volume or rate than would have resulted from a ten-year storm where the land is in its predevelopment state.

All stormwater storage facilities shall be designed with sufficient capacity to achieve water quality goals of this section and to eliminate all runoff caused by the development in excess of that which would have come from the site if it were in its predevelopment state.

Stormwater management measures shall be consistent with the requirements of Environment Article § 4-201 et seq., Annotated Code of Maryland, as may be amended from time to time.

§ NR 3-206 Resource Conservation Areas.

Description. Areas characterized by nature-dominated environments (that is wetlands, forests, abandoned fields) and resource-utilization activities (that is agriculture, forestry, fisheries activities or aquaculture). At the time of the initial mapping, these areas had at least one of the following features:

Existing density is less than one dwelling unit per five acres; or

Dominant land use is in agriculture, wetland, forest, barren land, surface water or open space.

General requirements. The County's Critical Area Subtitle hereby incorporates the following requirements for Resource Conservation Areas. New or expanded development or redevelopment in these areas shall take place in such a way as to:

Conserve, protect and enhance the overall ecological values of the Critical Area, its biological productivity and its diversity;

Provide adequate breeding, feeding and wintering habitats for those wildlife populations that require the Chesapeake Bay, its tributaries or coastal habitats in order to sustain populations of those species.

Conserve the land and water resource base that is necessary to maintain and support land uses such as agriculture, forestry, fisheries activities and aquaculture.

Conserve the existing developed woodlands and forests for the water quality benefits that they provide.

Development standards. The following criteria are hereby adopted for Resource Conservation Areas:

Land use management practices shall be consistent with the policies and criteria for the habitat protection area section, the agricultural section, and the forest and woodlands protection section of this Subtitle.[1]

Editor's Note: See §§ NR 3-218, Habitat protection, NR 3-219, One-hundred-foot buffer, NR 3-217, Agriculture and NR 3-214, Forest and woodland protection.

Agricultural and conservation easements shall be encouraged in Resource Conservation Areas.

Land within the Resource Conservation Area may be developed for residential uses at a density not to exceed one dwelling unit per twenty acres. Within this limit of overall density, minimum lot sizes may be determined by the County. Such mechanisms as cluster development, maximum lot size provisions and/or additional means to maintain the land area necessary to support the protective uses will be encouraged by the County and implemented as necessary.

Existing industrial and commercial facilities, including those that directly support agriculture, forestry, aquaculture or residential development not exceeding the density specified in § NR 3-206(c)(3) above, shall be allowed in Resource Conservation Areas.

New commercial, industrial, and institutional uses shall not be permitted in Resource Conservation Areas, except as provided for in the County's growth allocation provisions. Additional land may not be zoned or used for industrial, commercial, or institutional development, except as provided by the County's growth allocation provisions. Non-industrial activities which support surface mining, agriculture and forestry may be established or expanded, provided they conform with the other requirements of this Subtitle.

The County shall ensure that the overall acreage of forest and woodland within the RCA does not decrease.

Development activity within the Resource Conservation Areas shall be consistent with the requirements for Limited Development Areas in this Subtitle as specified in § NR 3-205.

Nothing in this section shall limit the ability of a participant in the Agricultural Easement Program to convey real property impressed with such an easement to family members, provided that no such conveyance will result in a density greater than one dwelling unit per twenty acres.

In calculating the one-in-twenty acre density of development that is permitted on a parcel located within the resource conservation area, the County may permit the area of any private wetlands located on the property to be included under the following conditions:

The density of development on the upland portion of the parcel may not exceed one dwelling unit per eight acres; and

The area of private wetlands shall be estimated on the basis of vegetative information as designated on the state wetlands maps or by private survey approved by the County and the State Department of Natural Resources.

In consideration of additional dwelling units per lot or parcel as part of the primary dwelling unit the County shall adhere to the following:

[Added 9-21-2004 by Bill No. 04-7]

Within a Resource Conservation Area, the County may consider one additional dwelling unit per lot or parcel as part of the primary dwelling unit for the purpose of the density calculation under this subsection if the additional dwelling unit meets either of the following sets of conditions:

The additional dwelling unit is located within the primary dwelling unit or its entire perimeter is within one hundred feet of the primary dwelling unit, it does not exceed nine hundred square feet in total enclosed area, and it is served by the same sewage disposal system as the primary dwelling unit; or

The additional dwelling unit is located within the primary dwelling unit, is built so that its construction does not increase the amount of impervious surface already attributed to the primary dwelling unit, and it is served by the same sewage disposal system as the primary dwelling unit.

An additional dwelling unit meeting all the criteria of this section that is separate from the primary dwelling unit may not be subdivided or conveyed separately from the primary dwelling unit.

The provisions of this section apply to density calculations only and may not be construed to authorize the County to grant a variance, unless the variance is granted in accordance with the requirements and standards in this Subtitle for variances in the Atlantic Coastal Bays Critical Area.

The County shall maintain records of all building permits issued under this section for additional dwelling units considered part of a primary dwelling unit and shall provide this information on a quarterly basis to the Critical Area Commission.

Land use in the RCA. In addition to the uses specified above, certain non-residential uses may be permitted in Resource Conservation Areas if it is determined by the Worcester County Department of Development Review and Permitting that the proposed use is one of the following:

A home occupation as an accessory use on a residential property and as provided for in the County's Zoning Ordinance;

A golf course, excluding main buildings and/or structures such as the clubhouse, pro- shop, parking lot, etc.;

A cemetery that is an accessory use to an existing church;

A bed-and-breakfast facility located in an existing residential structure and where meals are prepared only for guests staying at the facility;

A gun club or skeet shooting range or similar use, excluding main buildings and/or structures, such as a clubhouse, snack bar, etc.;

A day-care facility in a dwelling where the operators live on the premises and there are no more than eight children;

A group home or assisted living facility with no more than eight residents;

Other uses determined by the County and the Critical Area Commission to be similar to those listed above.

§ NR 3-207 Growth allocation.

Description. The upland area of the County within the Critical Area comprises about nine thousand six hundred acres. Within the Critical Area, one hundred thirty acres of land were classified as IDA or LDA. The remaining nine thousand four hundred seventy acres were classified as RCA. The State Critical Area Law permitted the County to allocate five percent of this area, or four hundred seventy-three and five-tenths acres, for use for future growth as either IDA or LDA. Since the initial allocation, a growth allocation totaling three acres granted to the town of Snow Hill and the correction of a mapping mistake from RCA to IDA and totaling eighteen and eighty-nine hundredths acres along MD Rt. 12 immediately northeast of Snow Hill has reduced this amount available for future growth allocation to four hundred fifty-one and sixty-one hundredths acres. This acreage shall be used for the expansion of existing or the creation of new LDAs and IDAs under the following general guidelines:

The total area of expansion of Intensely Developed or Limited Development Areas, or both, shall not exceed four hundred seventy-three and five-tenths acres.

When permitting future expansion of Intensely Developed and Limited Development Areas near the municipalities of Snow Hill and Pocomoke City, the County shall notify the appropriate local officials to allow them an opportunity to comment on how the expansion may affect these municipalities.

Requirements. When locating new Intensely Developed or Limited Development Areas the County shall use these requirements:

New Intensely Developed Areas should be located in Limited Development Areas or adjacent to existing Intensely Developed Areas;

New Limited Development Areas should be located adjacent to existing Limited Development Areas or Intensely Developed Areas;

New Intensely Developed Areas shall be at least twenty acres in size unless:

They are contiguous to an existing IDA or LDA; or

They are a grandfathered commercial or industrial use which was permitted and legally existing as of the date of local Program approval. The amount of growth allocation deducted shall be equivalent to the area of the entire parcel or parcels subject to the growth allocation request.

No more than one-half of the allocated expansion may be located in Resource Conservation Areas except as provided in Subsection (b)(9) below;

New Intensely Developed Areas and Limited Development Areas should be located in order to minimize impacts to habitat protection areas as specified in this Subtitle and in an area and in a manner that optimizes benefits to water quality;

New Intensely Developed Areas should be located where they minimize their impacts to the defined land uses of the Resource Conservation Area;

New Intensely Developed Areas and Limited Development Areas in the Resource Conservation Area should be located at least three hundred feet landward of the limits of tidal wetlands or tidal waters;

New Intensely Developed or Limited Development Areas to be located in Resource Conservation Areas shall conform to all criteria of the County for such areas, shall be so designated on the County Zoning Map and shall constitute an amendment to this Program subject to review and approval by the County Planning Commission, the County Commissioners and the Critical Area Commission.

If the County is unable to utilize a portion of its growth allocation as set out in Subsection (b)(1) and (2) above within or adjacent to existing Intensely Developed or Limited Development Areas, then that portion of the allocated expansion which cannot be so located may be located in the Resource Conservation Areas in addition to the expansion allowed in Subsection (b)(4) above. An applicant shall be required to cluster any development in an area of expansion authorized under this Subsection (b)(9).

Process. Applicants for growth allocation shall submit a request for growth allocation accompanied by appropriate plans and environmental reports in accordance with the following process:

All applications for growth allocation shall be submitted to the County Department of Development Review and Permitting. Requests shall be accompanied by a concept plan and appropriate environmental reports and studies so as to provide sufficient information to permit the Planning Commission to review the application for consistency with the County's Critical Area regulations. The subdivision history of parcels designated as RCA must be provided as part of the growth allocation application. The date of December 1, 1985, is the date used for the original Critical Area mapping and shall be used as a beginning point of analysis.

All applications for growth allocation shall be forwarded to the Planning Commission for review and shall include comments and recommendations from the staff. The Planning Commission shall consider the growth allocation request prior to making a recommendation on the proposal to the County Commissioners.

The applicant shall address the Planning Commission's comments and recommendations and may revise the concept plan accordingly. The growth allocation request shall then be forwarded to the County Commissioners by the Planning Commission with a recommendation for either approval or denial.

The County Commissioners shall hold a public hearing following due notice in accordance with § ZS 1-114 of the Zoning and Subdivision Control Article on the request for growth allocation and any revisions to the concept plan.

The County Commissioners may establish conditions of approval that are consistent with the intent of the County's Critical Area Program.

Upon approval of the growth allocation request by the County Commissioners, the County shall send a request to the Critical Area Commission to utilize a portion of their growth allocation. The request shall be accompanied by pertinent plans and environmental reports and studies. Upon receipt of the request from the County, the Critical Area Commission shall notify the County regarding the processing of the request as an amendment or refinement to the County's Program. Refinements shall be acted on within thirty days of the Commission's notification to the County of a complete submission. Amendments will be acted on within ninety days of the Commission's notification of a complete submission.

Following approval of the growth allocation request by the Critical Area Commission, the County Commissioners may implement the change, and the applicant may proceed to the preparation of the final site plan or subdivision plat for recording in the County land records.

Prior to approving the final site plan or subdivision plat, the Planning Commission or its designee shall ensure that all conditions of approval are incorporated into the final plan, public works agreement, deed covenants, etc.

Final subdivision plats and site plans shall be processed in accordance with the requirements of this Subtitle and the County's Subdivision Regulations.

The County's official Critical Area maps shall be amended to reflect the new land classification and a copy of the new map shall be provided to the Critical Area Commission.

(11)

As a condition of approval, the County may require that all projects approved for the use of growth allocation shall demonstrate that they are substantially completed within three years of the date of growth allocation approval by the Commission. Substantially completed shall be determined by the Planning Commission and is defined as projects in which all public improvements such as roads, sewer and/or water facilities, etc. have been built and approved as required by the County.

Standards. Applicants for growth allocation shall demonstrate that the following design standards will be met or exceeded by the proposed project:

All requirements of the County's Critical Area Program, Zoning Ordinance, and Subdivision Regulations have been met.

For residential development, the area to be developed shall be limited to no more than fifty percent of the site.

In addition to meeting the minimum requirements of the Critical Area regulations, the project design shall enhance the habitat value or improve water quality in the area. For example, afforestation may exceed the fifteen-percent requirement or best management practices for stormwater management may be installed on portions of the site to remain in agricultural use.

For residential development, where possible a community pier shall be provided rather than individual piers.

Deduction methodology. The following standards shall be used to determine the area of growth allocation to be deducted when the designation of a parcel or a portion of a parcel is changed through the growth allocation process:

Subdivision of any lot of record existing as of December 1, 1985, and which is classified as RCA or LDA, where all or part of the parcel is identified by the County as a growth allocation area, shall result in the acreage of the entire parcel, excluding tidal wetlands, being deducted from the jurisdiction's growth allocation, unless the development envelope concept outline in Subsection (e)(2) below is used.

In order to allow some flexibility in the use of growth allocation when development is only proposed on a portion of the property, the following methodology may be used for parcels designated as RCA. On a parcel proposed for the use of growth allocation, a single development envelope may be specified and the acreage of the development envelope rather than the acreage of the entire parcel shall be deducted from the County's growth allocation if the development envelope meets the following criteria:

The development envelope shall include individually owned lots, required buffers, impervious surfaces, roads, utilities, stormwater management measures, on-site sewage disposal measures, any areas subject to human use such as active recreation areas, and any additional acreage needed to meet the development requirements of the criteria. The required buffers refer to the minimum one-hundred-foot buffer and the twenty-five-foot non-tidal wetlands buffer.

Only one development envelope shall be established per parcel of land.

If a development envelope is proposed in the RCA, a minimum of twenty acres must remain outside of the development envelope or the acreage of the entire parcel must be deducted. If the original parcel in the RCA is less than twenty acres, then the acreage of the entire parcel must be deducted. If there is a permanently protected Resource Conservation Area (an area protected by recorded easement) adjacent and contiguous to an undeveloped remainder which totals less than twenty acres and which together will result in a minimum twenty-acre undeveloped area, then only that portion of the parcel which is to be developed has to be deducted.

The minimum twenty-acre undeveloped remainder outside of the development envelope may be developed at an RCA density unless some type of permanent protection exists that restricts development.

For growth allocation proposed in the RCA, a three-hundred-foot naturally vegetated buffer is strongly encouraged and where it is provided, it shall not be deducted even if the buffer does not meet the twenty-acre requirement.

§ NR 3-208 Grandfathered uses.

Continuation of existing uses. The County shall permit the continuation, but not necessarily the intensification or expansion, of any permitted use or structure legally existing on the date of Program approval, unless the use has been discontinued for more than one year or is otherwise restricted by existing local ordinances. If any existing use or structure does not conform with the provisions of the Program, its intensification or expansion may be permitted only in accordance with the variance procedures outlined in § NR 3-211 of this Subtitle.

Residential density. Except as herein provided, the County shall permit the types of land described in the following subsections to be developed in accordance with density requirements in effect prior to the adoption of the Critical Area Program notwithstanding the density provisions of the Program. The County shall permit a single lot or parcel of land that was a legally recorded lot on November 30, 1988, (the date of Program approval) to be developed with a single-family dwelling if a dwelling is not already placed there (notwithstanding that such development may be inconsistent with the density provisions of this Subtitle) provided that:

It is on land where development activity has progressed to the point of the pouring of foundation footings or the installation of structural members.

It is a legal parcel of land, not being part of a recorded or approved subdivision, that was recorded as of December 1, 1985, and land that was subdivided into recorded, legally buildable lots, where the subdivision received the County's final approval prior to June 1, 1984, if:

At the time of development, the land is brought into conformance with the Critical Area Program insofar as possible, including the consolidation or configuration of lots not individually owned and these procedures are approved by the Critical Areas Commission; or

The land has received a building permit subsequent to December 1, 1985, but prior to local Program approval.

It is on land that was subdivided into recorded, legally buildable lots, where the subdivision received the County's final approval between June 1, 1984, and December 1, 1985; and

It is on land that was subdivided into recorded, legally buildable lots, where the subdivision received the final approval after December 1, 1985, and provided that either development of any such land conforms to the IDA, LDA or RCA requirements in this Subtitle or the area of the land is counted against the growth allocation permitted under this Subtitle.

Consistency. Nothing in this section may be interpreted as altering any requirements for development activities set out in the water-dependent facilities section or the habitat protection section of this Subtitle.[1]

Editor's Note: See §§ NR 3-223, Water-dependent facilities, NR 3-218, Habitat protection, and NR 3-219, One-hundred-foot buffer.

§ NR 3-209 Intrafamily subdivisions.

Applicability. The County shall permit bona fide intrafamily transfers to be made only from parcels of land that:

Were of legal record on March 1, 1986; and

Are seven acres or more and less than sixty acres in size.

Required subdivision. A bona fide intrafamily transfer from a portion of a parcel of land shall be a subdivision of the parcel of land that is subject to approval under the Subdivision Regulations of the County.

Approval of subdivision of parcels. The County may approve the subdivision of a parcel of land into the number of lots indicated in this subsection by means of a bona fide intrafamily transfer and may not approve any greater subdivision of the parcel of land or any portion of it as follows:

A parcel that is seven acres or more and less than twelve acres in size may be subdivided into two lots.

A parcel that is twelve acres or more and less than sixty acres in size may be subdivided into three lots. The lots may be created at different times.

Conditions of approval. As a condition of approval the County shall require that:

Any deed for a lot that is created by a bona fide intrafamily transfer shall contain a covenant approved by the County Commissioners stating that the lot is created subject to the provisions of Natural Resources Article § 8-1801, Annotated Code of Maryland; and

A lot created by a bona fide intrafamily transfer may not be conveyed subsequently to any person other than a member of the owner's immediate family, except under provisions set forth in Subsection (e) of this section.

This subsection does not prevent the conveyance of the lot to a third party as security for a mortgage or deed of trust.

Standards and procedures for subsequent conveyance of lots created by intrafamily transfer to persons other than immediate family members. Prior to the conveyance of such lots to persons other than immediate family members, the current owner shall make application on forms prescribed by the Department in accordance with the following procedures:

The request shall be accompanied by a title history of the parcel originally approved as an intrafamily transfer and any fee as established by prior resolution of the County Commissioners.

The Department shall review the application and accompanying documents and provide a report and recommendation to the County Commissioners with regard to the consistency of the application with the requirements and standards as established by this subsection.

The County Commissioners shall provide for an opportunity for the applicant to be heard and may, where determined necessary, hold a public hearing relative to the matter following due notice in accordance with § ZS 1-114 of the Zoning and Subdivision Control Article. In evaluating the request and prior to approving any such transfer, the County Commissioners shall make findings of fact with respect to the following:

The lot was created as part of a bona fide intrafamily transfer and not with the intent of subdividing the original parcel of land for purposes of ultimate commercial sale; and

A change in circumstances has occurred since the original transfer was made that is not inconsistent with this subtitle and that warrants an exception; or

Other circumstances exist that are consistent with this subtitle and with the Critical Area Criteria to maintain land areas necessary to support the protective uses of agriculture, forestry, open space and natural habitats in Resource Conservation Areas and thus warrant an exception.

The County Commissioners, by resolution, may approve the request and may furthermore establish conditions of approval consistent with the intent of the Chesapeake Bay Critical Areas Program. Any resolution so passed by the County Commissioners shall be recorded in the land records of Worcester County and shall render null and void any previously recorded covenants limiting non-intrafamily transfers.

The total area of any parcel or lot approved for such a transfer shall be deducted from the total amount of the County's growth allocation.

§ NR 3-210 Implementation of the Critical Area provisions.

Regulated activities and applicability. Any applicant for a permit or license to pursue activities within the County Critical Area, such as development or redevelopment, grading, sediment and erosion control, timber harvesting, shoreline erosion control, installation of a septic system and drain field, operation of a waste collection or disposal facility, operation of a commercial or private marina or other water-related commercial or industrial operation (whether public or private), mining (whether surface or sub-surface) or quarrying, farming or other agriculturally-related activities, shall only have such permits or licenses issued by the County after review and approval under this Critical Area Subtitle.

Responsible agency. All applications for such County permits and licenses that are issued by the County shall be made to the receiving department or County Department of Development Review and Permitting. The Department shall make available to all agencies involved in overseeing regulated activities a set of maps showing the location so that these agencies may identify affected properties subject to said referrals. Applications for timber harvesting shall be reviewed by the Department of Natural Resources and the District Forestry Board. Applications for mining and quarrying shall be reviewed by the County Department of Development Review and Permitting and appropriate state agencies. Applications for farming or other agriculture-related activities shall be reviewed by the County Department of Development Review and Permitting or the County Soil Conservation District Office, depending on the nature or the proposed activity.

Process. Upon receiving the referred application, the County Department of Development Review and Permitting shall review the application for compliance of the activity with the requirements of this Subtitle. The Critical Area review involves evaluating the one-hundred-foot buffer, area of impervious surface, area of forest cover, area of steep slopes, location of tidal or non-tidal wetlands and their buffers, and the development of a mitigation plan if required. If the activity is in compliance it shall be returned to the receiving department or office within fifteen business days of its receipt by the office. If it is not in compliance, it shall be returned to the receiving department or office within thirty business days with the reasons for non-compliance.

Application requirements. In order for the County Department of Development Review and Permitting to make findings and specific recommendations as to compliance of a project with the goals of the Critical Area Program, information on land and water disturbing activities must be submitted by the applicant. This information shall include a Critical Area site plan and a written Critical Area report.

Critical Area site plan. The Critical Area site plan must be drawn to scale and shall include but not be limited to the following information:

Topography (if property is flat or gently sloping, state this on the plan).

Mean high water line.

Tidal wetlands.

Tributary streams.

Non-tidal wetlands.

Soils.

Forest cover (show individual trees or a tree line defining wooded areas).

One-hundred-foot buffer (drawn from mean high water, edge of tidal wetlands or tributary streams).

(i)

The buffer may be required to be expanded beyond one hundred feet to include contiguous sensitive areas, such as steep slopes, hydric soils, or highly erodible soils, whose development or disturbance may impact streams, wetlands, or other aquatic environments.

Habitat protection areas.

All impervious surfaces (include all structures, sidewalks, sheds, decks, driveways, pools) labeled as existing or proposed.

All proposed clearing, grading, and disturbance (e.g., septic areas, wells).

Computation of the amount of existing and proposed impervious surfaces, existing forest cover and proposed clearing, and total area of disturbance.

Critical Area report. The Critical Area report must include a description of your project and an environmental assessment of the site. This report shall include but not be limited to the following information:

Forest cover, generally describe size and species of trees and shrubs.

Shoreline condition, if the project involves a pier, bulkhead or revetment.

Proposed or existing stormwater management measures.

Site topography and soil conditions, including any areas of erosion or run-off.

Proposed clearing, excavation and grading if applicable.

Discussion of the proposed development including number of residential units, amount of proposed impervious surface, proposed sewer treatment and water supply, total square footage of clearing, grading and disturbance.

Discussion of the proposed development's impacts on water quality and habitat protection areas.

Documentation of all correspondence and findings received from any County, state or federal agency.

§ NR 3-211 Variances.

Applicability. The County has established provisions where, owing to special features of a site or other circumstances, implementation of this Program or a literal enforcement of provisions within the Program would result in unwarranted hardship to an applicant, a Critical Area Program variance may be obtained.

Standards. The County shall make findings which demonstrate that the variance request meets the following standards:

Special conditions or circumstances exist that are peculiar to the land or structure involved and that a literal enforcement of provisions and requirements of the County's Critical Area Program would result in unwarranted hardship;

A literal interpretation of the provisions of the Critical Area Program and related ordinances will deprive the applicant of rights commonly enjoyed by other properties in similar areas within the Critical Area;

The granting of a variance will not confer upon an applicant any special privilege that would be denied by the County Critical Area Program to other lands or structures within the Critical Area;

The variance request is not based upon conditions or circumstances which are the result of actions by the applicant, nor does the request arise from any condition relating to land or building use, either permitted or non-conforming on any neighboring property;

The granting of a variance shall not adversely affect water quality or adversely impact fish, wildlife or plant habitat within the Critical Area and the granting of the variance will be in harmony with the general spirit and intent of the State Critical Area Law and the County Critical Area Program.

Process. Applications for a variance must be made in writing to the Board of Zoning Appeals. A copy of the application and all supporting documentation shall be provided to the Critical Area Commission no less than two weeks prior to the required public hearing. After hearing an application for a Critical Area Program variance, the Board of Zoning Appeals shall make findings reflecting analysis of each standard before making a decision on the requested variance. The Board of Zoning Appeals shall notify the Critical Area Commission of its findings and action on the variance request.

Board procedures. The following procedures shall be adhered to by the Board of Zoning Appeals when considering variance requests to this Subtitle:

[Added 9-21-2004 by Bill No. 04-7[1]]

In considering an application for a variance the Board of Zoning Appeals shall presume that the specific development activity in the Critical Area that is subject to the application and for which a variance is required does not conform with the general purpose and intent of Natural Resources Article, Title 8, Subtitle 18, COMAR Title 27, as from time to time amended, and the requirements of the County's Chesapeake Bay Critical Area Program.

If the variance request is based on conditions or circumstances that are the result of actions by the applicant, including the commencement of development activity before an application for a variance has been filed, the Board of Zoning Appeals may consider that fact.

An applicant has the burden of proof and the burden of persuasion to overcome the presumption of nonconformance established in Subsection (d)(1) above.

Based on competent and substantial evidence, the Board of Zoning Appeals shall make written findings as to whether the applicant has overcome the presumption of nonconformance as established above.

With due regard for the person's experience, technical competence, and specialized knowledge, the written findings may be based on evidence introduced and testimony presented by:

The applicant;

Any agency of the local, state or federal government; or

Any other person deemed appropriate by the Board of Zoning Appeals.

Editor's Note: This ordinance also redesignated former Subsections (d) and (e) as Subsection (e) and (f), respectively.

Appeals. Appeals from decisions concerning the granting or denial of a variance under these regulations shall be taken in accordance with all applicable laws and procedures of the County for variances. Variance decisions by the Board of Zoning Appeals may be appealed to the Circuit Court in accordance with the Maryland Rules of Procedure. Appeals may be taken by any person, firm, corporation or governmental agency aggrieved or adversely affected by any decision made under this section.

Conditions and mitigation. The Board of Zoning Appeals shall impose conditions on the use or development of a property which is granted a variance as it may find reasonable to ensure that the spirit and intent of the Critical Area Program is maintained including, but not limited to the following:

Adverse impacts resulting from the granting of the variance shall be mitigated by planting on the site per square foot of the variance granted at no less than a three to one basis or as recommended by the Department of Development Review and Permitting.

New or expanded structures or impervious surfaces shall be located the greatest possible distance from mean high water, the landward edge of tidal wetlands, tributary streams, non-tidal wetlands, or steep slopes.

§ NR 3-212 Administration and enforcement.

Responsible agencies. The responsibility for the administration and enforcement of this Subtitle shall be vested in such County Department (hereinafter called the "Department") as designated or created for such purpose by the County Commissioners. The Department may be provided with such personnel and resources as the County Commissioners may direct. The Department may delegate to its own personnel and to other persons such duties and responsibilities in connection with the administration and enforcement of this Subtitle as are appropriate in the Department's judgement. If the Department shall find that any of the provisions of this subtitle are being violated, it shall notify, by certified mail, by posting the property or by other appropriate method, the person responsible for such violation, indicating the nature of the violation and ordering the action necessary to correct it within a reasonable period of time as determined by the Department. If, at the conclusion of such reasonable period, the violation has not, in the judgement of the Department, been satisfactorily corrected, the Department shall order or seek an injunction to bring about the correction of such violation, including the removal or discontinuance of illegal buildings, structures or uses, of illegal additions, alterations or structural changes or of any illegal work, use or activity being done, or shall take any other action authorized by law to ensure compliance with this Subtitle and prevent violation of its provisions. In addition, as an alternative remedy, violations of the provisions of this Subtitle or failure to comply with any of its requirements may, in minor cases as determined by the Department, constitute a civil infraction and shall be subject to a fine of not more than five hundred dollars.

Additional penalties. In addition to any other penalty applicable under state or County law, a person who violates a provision of Natural Resources Article, Title 8, Subtitle 18, as from time to time amended, or the County's Chesapeake Bay Critical Area Ordinance is subject to a fine not exceeding ten thousand dollars. In determining the amount of the penalty to be assessed under this subsection, the County may consider the following:

The gravity of the violation;

Any willfulness or negligence involved in the violation; and

The environmental impact of the violation.

§ NR 3-213 Amendments.

Amendments. The County Commissioners may from time to time amend the County Critical Area Program, including but not limited to this Subtitle and the associated maps. All such amendments shall also be approved by the Critical Area Commission as established in § 8-1809 of the Critical Area Law. No such amendment shall be granted without approval of the Critical Area Commission. Standards and procedures for Critical Area Commission approval of proposed amendments are as set forth in the Critical Area Law § 8-1809(i) and § 8-1809(d), respectively. In addition, the County Commissioners shall review and propose any necessary amendments as required at least every four years.

Process. When an amendment is requested, the applicant shall submit the amendment to the Department of Development Review and Permitting for review and research. Upon completing findings of fact, these documents shall be forwarded to the County Commissioners. The County Commissioners shall hold a public hearing at which parties of interest and citizens shall have an opportunity to be heard. At least fifteen days' notice of the time and place of such hearing shall be published in a newspaper of general circulation in the County. The County Commissioners shall forward its recommendation along with the amendment request to the Critical Area Commission for final approval.

§ NR 3-214 Forest and woodland protection.

General requirements. Recognizing the value of forested land for its water quality benefits and for habitat protection while accommodating the utilization of forest resources, the following policies for forest and woodland protection should be adhered to wherever possible:

Maintain and increase the forested vegetation in the Critical Area;

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

Provide that the removal of trees associated with development activities shall be minimized and, where appropriate, shall be mitigated; and

Recognize that forests are a protective land use and should be managed in such a manner so that maximum values for wildlife, water quality, timber, recreation, and other resources can be maintained, even when they are mutually exclusive.

Identification. The County has identified and mapped forests and developed woodlands within the Critical Area and has identified and mapped habitat protection areas as described in §§ NR 3-218 through NR 3-223. More detailed evaluation of forest resources on specific sites shall be accomplished as part of the environmental analysis required prior to site plan and subdivision approval.

Requirements for the protection of riparian and forest habitat. The purpose of the following requirements is to protect habitat:

Vegetation within the one-hundred-foot buffer shall be maintained in its natural condition along all streams to provide wildlife corridors.

A minimum one-hundred-foot buffer shall extend landward from the mean high water line of tidal water, tributary streams and tidal wetlands. This area is to be conserved for wildlife protection.

Non-tidal wetland forests shall be left in a natural state for wildlife and water quality protection.

Forest areas utilized as breeding areas by forest interior dwelling birds and other wildlife species shall be conserved.

Existing riparian forests which are documented breeding areas shall be conserved.

Process. If a forest is to be developed or to be harvested, a site-specific field investigation shall be conducted to determine if important sensitive species are present and to make sure that appropriate protection measures are incorporated into the development plan or timber harvest plan. The Department of Natural Resources will make specific recommendations based on an evaluation of the site and the proposed development. In general, the following measures are required:

Minimize forest and woodlands disturbance from off-road vehicles, public use or logging from May through August of each year;

Focus all development on the periphery of the forest or woodlands;

Retain the forest canopy as well as shrub understory;

Retain snag and mature seed trees as dens for woodpeckers and as nests for bald eagles;

Discourage the creation of small clearings and expansion of forest edge habitats;

Encourage re-establishment of native forests and woodlands; and

Adopt harvest techniques to maintain or improve habitat.

Requirements for the establishment or replacement of forest. The following policies shall be used for afforestation and reforestation:

The replacement or establishment of forests or developed woodlands should ensure a diversified plant community and should include canopy trees, understory trees, shrubs and herbaceous plants.

Native species must be used for all reforestation and afforestation.

Buffer protection standards for timber for personal use. Individual trees may be cut for personal use if the trees cut are replaced on an equal basis and provided the cutting does not impair the water quality or existing habitat value or other functions of the buffer set forth in § NR 3-219. Cutting or clearing of trees and natural vegetation within the buffer shall be prohibited except that:

Cutting of trees or removal of natural vegetation may be permitted where necessary to provide pedestrian access of no more than six feet in width to private piers, or to install or construct a shore erosion protection device or measure, or a water-dependent facility, providing the device, measure or facility has received all necessary state and federal permits.

Individual trees may be removed which are in danger of falling and causing damage to dwellings or other structures, or which are in danger of falling and therefore causing the blockage of streams, or resulting in accelerated shore erosion.

Horticultural practices may be used to maintain the health of individual trees.

Other cutting techniques may be undertaken within the buffer and under the advice and guidance of the State Departments of Agriculture and Natural Resources, if necessary to preserve the forest from extensive pest or disease infestation or threat from fire.

(g)

Enforcement. Unauthorized clearing, cutting, or removal of vegetation; unauthorized clearing, cutting, or removal of vegetation in the buffer; and clearing, cutting or removal of vegetation in excess of the area permitted to be cleared by this Subtitle is considered a civil infraction.

For unauthorized clearing, cutting, or removal of vegetation that does not exceed the area that could be authorized in accordance with this Subtitle, fines shall be assessed in the amount of five hundred dollars for each day the violation continues and reforestation shall be required on an equal area basis if less than twenty percent of the forest cover is removed. For clearing between twenty percent and thirty percent of the existing forest cover, reforestation shall be required at one and five-tenths times the total surface acreage of forest cleared.

For unauthorized clearing, cutting, or removal of vegetation that exceeds the area that could be authorized in accordance with this Subtitle, fines shall be assessed at five hundred dollars for each day the violation continues and reforestation shall be required at three times the total surface acreage of forest cleared.

For unauthorized clearing, cutting, or removal of vegetation in the buffer or another habitat protection area, fines shall be assessed at one thousand dollars for each occurrence and reforestation shall be required at three times the total surface acreage of forest cleared.

When trees or vegetative cover can not be fully replaced on site because of existing vegetation, existing development, or the size of the parcel, then fees in lieu of planting may be collected. Fees shall be assessed at forty cents per square foot of required mitigation or one hundred twenty dollars per tree, whichever is greater.

Fines collected from enforcement actions in the Critical Area shall be maintained in a separate account to be used by the County for reforestation or other habitat enhancing efforts anywhere within the Critical Area.

§ NR 3-215 Commercial timber harvesting.

General requirements. A goal of the Critical Area Program is to maintain or increase the lands in forest cover, because forests provide protection of the water quality and habitat values of the Chesapeake Bay and its tributaries. The problems of sedimentation and erosion can occur when poorly managed timber operations take place in the watershed. These problems can be substantially reduced by proper management of harvest operations.

Process. Applicants proposing to develop, redevelop, subdivide or rezone their property shall show all forests and woodlands on the property. The forested areas and appropriate notes related to their conservation shall be shown on the plans submitted for review. Landowners proposing to harvest timber on one or more acres in the Critical Area shall submit a timber harvest plan. This plan shall be prepared by a registered professional forester. The timber harvest plan shall be reviewed and approved by the Department of Natural Resources and the District Forestry Board. The approved plan shall be filed with the County Soil and Water Conservation District and a copy of the approved plan shall be sent to the Department of Development Review and Permitting and a permit issued prior to beginning timbering operations.

Timber harvest plan contents. Plans shall include measures to protect surface and ground water quality and identify whether the activities will disturb or affect habitat protection areas as identified in §§ NR 3-218 through NR 3-223 of this Subtitle and shall incorporate protection measures for these areas as specified in that section. To provide for the continuity of habitat, the plans shall address mitigation through forest management techniques which shall include scheduling size, timing and intensity of harvest cuts, afforestation and reforestation.

Sediment control plans. In the Worcester County Critical Area, any landowner who plans to harvest timber on an area which will disturb five thousand square feet or more, including harvesting on agricultural lands, shall submit a sediment control plan for approval. This plan is also required for any harvests which will cross perennial or intermittent streams. This plan shall be developed according to the state guidelines entitled: "Standard Erosion and Sediment Control Plan for Harvest Operations." The operations shall be implemented in accordance with specifications set out by the Department of Natural Resources and enforced by the Department of the Environment and the County.

If cuts and fills are three feet or more, if grades for roads are fifteen percent or more, or if landings are on slopes of ten percent or more, then the landowner must get a custom sediment control plan for the operation. These are prepared by registered professional foresters and include controls necessary to prevent site erosion and to ensure site stabilization. This plan shall be submitted to the local Soil Conservation District for approval and notice of approval sent to the Department of Development Review and Permitting.

Either the owner or the operator shall take responsibility for implementation of the sediment control plan or each subcontractor must file a separate plan.

The landowner must sign the agreement to certify that he understands the terms of the plan and is responsible for preventing erosion and sedimentation during the forest harvesting.

Buffer protection standards for timber harvests. A minimum one-hundred-foot buffer shall be maintained in natural, native vegetation between tidal waters, wetlands and streams and uplands. The buffer is measured landward from the mean high water line (MHWL) of tidal waters, from each bank of tributary streams and from the landward edge of tidal wetlands.

Where necessary the buffer can be planted to protect, stabilize or enhance the shoreline.

§ NR 3-216 Surface mining.

Definition. "Surface mining" is defined as the breaking of the surface soil in order to extract or remove minerals in the Critical Area. Surface mining includes any activity or process constituting all or part of a process for the extraction or removal of minerals from their original location in the Critical Area and the extraction of sand, gravel, rock, stone, earth or fill from borrow pits for highway construction purposes or for other facilities. For the purpose of this section, "surface mining" is also defined as operations engaged in processing minerals at the site of extraction; removal of overburden and mining of limited amounts of any mineral when done for the purpose of prospecting and to the extent necessary to determine the location, quantity or quality of any natural deposit; and mining operations, if the affected land exceeds one acre or more in area.

General requirements. The County shall assure that all available measures are taken to protect the Critical Area from all sources of pollution from surface mining operations including, but not limited to sedimentation, siltation, chemical and petrochemical use and spillage, and storage and disposal of waste, dusts and spoils. The County shall further assure that surface mining is conducted in a way to permit the reclamation of surface mining sites as soon as possible and to the extent possible.

Mineral resource plan and program. The County mineral resources plan and program is included in the Comprehensive Plan.

Standards. Surface mining operation permits are issued by the Maryland Department of the Environment (MDE) and periodic site inspections of permitted areas are made to determine whether the conditions of the permit and the accompanying reclamation plan are being fulfilled. Permits for surface mining operations in the Critical Area shall only be granted if the following conditions are met:

A reclamation plan shall be submitted as part of the permit application which specifies the use which is proposed to be made of the site following reclamation, the manner in which that soil and subsoil are to be conserved and restored, the specifications for surface gradient restoration suitable for the subsequent use, the proposed manner and type of re-vegetation or other surface treatment of affected areas and an acceptable schedule to the County for the implementation of reclamation measures. Reclamation is to occur as mining on each segment of a site is completed.

The operation will not have an unduly adverse effect on wildlife, forests, or fresh water, estuarine or marine fisheries.

The operator has provided applicable permits from all federal, state and local regulatory agencies responsible for air and water pollution and sediment control.

Adequate consideration shall be given to:

The effects of the proposed action on the environment, including adverse and beneficial environmental effects that are reasonably likely if the proposal is implemented or if it is not implemented.

Measures that might be taken to minimize potential adverse environmental effects and maximize potential beneficial environmental effects, including monitoring maintenance, replacement, operation and other follow-up activities.

An applicant's previous experience with similar operations which indicates that the operation will not result in substantial deposits of sediment in stream beds or lakes, landslides, or other causes of water pollution.

Location of future sites.

New surface mining operations are permitted within the Critical Area, provided that identification of appropriate post-excavation uses for this land such as recreation, habitat restoration, open space use, or development are accomplished according to the appropriate land management classification (IDA, LDA or RCA) and other applicable County and state codes and ordinances.

Areas such as the following shall not be used for surface mining:

Habitat protection areas and other important natural resource areas such as those of scientific value or areas where assemblages of rare species occur;

Areas where highly erodible soils exist;

Areas where the use of renewable resource lands would result in the substantial loss of long-range twenty-five years or more) productivity of forest and agriculture, or would result in a degrading of water quality or a loss of vital habitat;

Lands that are within one hundred feet of the mean high water line of tidal waters, tidal wetlands, or the edge of streams.

Surface mining operations shall operate under the following conditions:

Future wash plants including ponds, spoil piles and equipment may not be located within the buffer as defined in this Subtitle.

Existing wash ponds shall be reclaimed as soon as possible after the cessation of a sand and gravel operation.

To the fullest extent possible, existing sand and gravel operations shall conduct their extraction activities so as to provide, at a minimum, a one-hundred-foot buffer of natural vegetation between the operation and the mean high water line of tidal waters or the edges of streams and tidal wetlands, whichever is further inland.

§ NR 3-217 Agriculture.

General requirements. The County shall follow all of the following requirements with regard to agriculture in the Critical Area:

Assure that agricultural lands are identified and that programs are established for the Critical Area to maintain, where appropriate, agricultural lands in agricultural use, to the greatest extent possible.

Recognize that agriculture is a protective land use that should be properly managed so that it minimizes its contribution to pollutant loadings to the Bay and its tributaries.

Assure that the creation of new agricultural lands is not accomplished:

By diking, draining or filling of any class or subclass of palustrine wetlands, as described in this Program, which have a seasonally flooded or wetter water regime, unless mitigation is accomplished in accordance with applicable state and County regulations;

By clearing of forests or woodlands on soils with a slope greater than fifteen percent; or on soils with a K value greater than thirty-five hundredths and slope greater than five percent;

If the clearing will adversely affect water quality or will destroy plant and wildlife habitat as defined in this Subtitle; or

By the clearing of existing natural vegetation within the Buffer as defined in this Subtitle.

Assure that the drainage of non-tidal wetlands for the purpose of agriculture be done in accordance with a soil conservation and water quality plan, approved by the County Soil Conservation District.

Assure that best management practices for the control of nutrients, animal wastes, pesticides and sediment runoff be used to protect the productivity of the land base and enhance water quality. These practices shall minimize contamination of surface and groundwater and further, shall minimize adverse effects on plants, fish and wildlife resources.

Assure that animal feeding operations, including retention and storage ponds, feed lot waste storage and manure storage minimize the contamination of water bodies.

Assure that agricultural activity permitted within the Critical Area uses best management practices in accordance with a soil conservation and water quality plan approved by the County Soil Conservation District.

Inventory of agricultural lands. Worcester County's intent is to maintain agriculture and forestry as viable and productive land uses within the Pocomoke watershed. The County has inventoried and mapped the general extent of agricultural lands within the Critical Area and has also mapped the habitat protection areas referenced in §§ NR 3-219 through NR 3-223 of this Subtitle. These maps shall be used to make an initial determination regarding how a proposed agricultural activity may adversely impact a habitat protection area.

Performance standards for agriculture. The following performance standards shall apply to all land in agricultural use or to be converted to agricultural use within the Critical Area:

The County hereby incorporates the agricultural components of the State 208 Water Quality Plan into this program. These components shall be applicable to all agricultural activities in the Critical Area.

Soil conservation and water quality plans and best management practices shall be developed and implemented for those portions of farms which lie within the Critical Area. Local farmers shall cooperate with the Worcester County Soil Conservation District for approval of their proposed plans. Landowners who have signed up as Conservation District operators but who do not have a conservation plan prepared for them by the local Conservation District shall be allowed to continue to farm until a conservation plan is developed, provided that the goals of this Program are being met.

A landowner shall select and implement practices, with the assistance of a technically trained soil conservation planner or technician, from among the several best management practices that minimize impacts to water quality, conserve fish, wildlife, and plant habitat, and integrate best with the farming operation.

Cover crops shall be planted to reduce erosion.

Nutrients shall be applied at the appropriate time and appropriate methods shall be used.

Reduced tillage (e.g. no-till) practices shall be utilized where practical.

Crop rotations shall be implemented.

Agricultural activities are permitted in the buffer, if, as a minimum best management practice, a twenty-five-foot vegetated filter strip measured landward from the mean high water line of tidal waters or tributary streams, or from the edge of tidal wetlands, whichever is further inland, is established and further provided that:

The filter strip shall be composed of either trees with a dense ground cover or a thick sod of grass and shall be so managed as to provide water quality benefits and habitat protection consistent with the policies stated above. Noxious weeds, including Johnson grass, Canada thistle, and multiflora rose, which occur in the filter strip, may be controlled by authorized means.

The filter strip shall be expanded by a distance of four feet for every one percent of slope, for slopes greater than six percent.

The twenty-five-foot vegetated filter strip 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 twenty-five-foot vegetated filter strip.

The best management practices shall include a requirement for the implementation of a grassland and manure management program where appropriate and that the feeding or watering of livestock, may not be permitted within fifty feet of the mean high water line of tidal water and the edge of the bank of tributary streams and the landward edge of tidal wetlands within the Critical Area.

Clearing of existing natural vegetation in the buffer is not allowed.

Farming activities, including the grazing of livestock, shall not disturb stream banks, tidal shorelines or other habitat protection areas as described in this Subtitle.

Where agricultural use of lands within the buffer ceases and the lands are proposed to be converted to other uses, the buffer shall be established. In establishing the buffer, management measures shall be undertaken to provide forest vegetation that assures the buffer functions as set forth in this section of the Subtitle.

§ NR 3-218 Habitat protection.

Description. The habitat protection section of the Worcester County Critical Area Subtitle addresses protection of the following four habitats:

The one-hundred-foot buffer;

Threatened and endangered species and species in need of conservation;

Plant and wildlife habitat protection areas including non-tidal wetlands; and

Anadromous fish propagation waters.

Identification. Maps illustrating the general location, extent and configuration of habitat protection areas in Worcester County are on file with the Department of Development Review and Permitting. They will be used as a flagging device to assist property owners, developers, any person proposing development activity, the Department of Development Review and Permitting, the Planning Commission and other agencies of the county government when reviewing development plans. While these maps give a general indication of the area, they do not excuse any property owner or operator from establishing to the satisfaction of the Worcester County Planning Commission whether or not the property or activity will affect the element of habitat to be protected. At the time of development the applicant will be responsible for providing an on-site analysis and inventory.

§ NR 3-219 The One-hundred-foot buffer.

Identification of the buffer. The establishment of a minimum one-hundred-foot buffer from the mean high water line of tidal waters, the edge of the bank of tributary streams, and the landward extent of tidal wetlands shall be required on a site-by-site basis as part of the environmental review and site analysis process.

General requirements. Worcester County adopts the following requirements with regard to the functions of the buffer:

Provide for the removal or reduction of sediments, nutrients and potentially harmful or toxic substances in runoff entering the Bay and its tributaries;

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

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

Maintain the natural environment of streams; and

Protect riparian wildlife habitat.

Standards. The following criteria apply to land use activities within the buffer:

The buffer shall be established at a minimum distance of one hundred feet landward from the mean high water line of tidal waters, the edge of the bank of tributary streams and the landward edge of tidal wetlands within the Critical Area.

The buffer shall be expanded beyond one hundred feet to include contiguous sensitive areas such as steep slopes, hydric soils or highly erodible soils whose development or disturbance may impact streams, wetlands or other aquatic environments. In the case of contiguous slopes of fifteen percent or greater, the buffer shall be expanded four feet for every one percent of slope or to the top of the slope, whichever is greater in extent.

The buffer shall also be required along both sides of all drainage ditches if adjacent agricultural lands do not have in place best management practices cited and approved under the agricultural protection section of this Subtitle.[1] The buffer may be used to establish wildlife corridors as defined under this program.

Editor's Note: See § NR 3-217, Agriculture.

New development activities including structures, roads, parking areas and other impervious surfaces, mining and related facilities or septic tanks may not be allowed in the buffer except for those necessarily associated with water-dependent facilities approved under §§ NR 3-223 and NR 3-224 of this Subtitle.

The buffer shall be maintained in natural vegetation, but may include planted vegetation where necessary to protect, stabilize, or enhance the shoreline. When lands are proposed to be developed or converted to new uses, the buffer shall be established. In establishing the buffer, management measures shall be undertaken to provide forest vegetation that assures the buffer functions as set forth in this section.

Tree cutting in the buffer. The buffer shall be managed to achieve or enhance the requirements stated in § NR 3-219(c). Individual trees may be cut for personal use, provided the cutting does not impair water quality or existing habitat value or other functions of the buffer. Cutting of trees or clearing of vegetation within the buffer shall be prohibited except that:

Cutting of trees or removal of natural vegetation may be permitted where necessary to provide access to private piers, or to install or construct a shore erosion protection device or measure, or a water-dependent facility, providing the device, measure or facility has received all necessary state and federal permits.

Individual trees may be cut for personal use, providing that this cutting does not impair the water quality or existing habitat value or other functions of the buffer as set forth in the policies of this plan and provided that the trees are replaced on an equal basis for each tree cut.

Horticultural practices may be used to maintain the health of individual trees.

Buffer exemption areas. The County will consider the designation and mapping of certain areas as buffer exemption areas. The area requested for designation as a buffer exemption area must be significant in size and characteristics to warrant the County's application to the State Critical Area Commission for an amendment to the County's Critical Area Program. Generally, it must be sufficiently demonstrated that the existing pattern of development in the proposed buffer exemption area prevents the buffer from fulfilling the functions set forth in § NR 3-219(b). If a buffer exemption area designation is requested, the County must propose other measures for achieving the water quality and habitat protection objectives of the buffer policies. These measures may include, but are not necessarily limited to offsets, public education and forestry programs. The measures must be approved under this Subtitle and by the Chesapeake Bay Critical Area Commission.

§ NR 3-220 Threatened and endangered species and species in need of conservation.

Identification. The approximate location of rare, threatened and endangered species and species in need of conservation are shown on the one-inch-equals-six-hundred-feet scale resource inventory maps filed with the Department of Development Review and Permitting. These maps will be used as a flagging device. Significant habitat areas include:

Pocomoke Sand Ridge. This area is comprised of a system of ancient sand dunes and associated non-tidal wetlands which supports an endangered species and several uncommon species, as more fully described in the Worcester County Chesapeake Bay Critical Area Program.

Poorhouse Branch. This area encompasses riparian forest, wetlands, and the habitats of several threatened and endangered species, as more fully described in the Worcester County Chesapeake Bay Critical Area Program.

Bald eagle nests. There are several bald eagle nests along the Pocomoke River, and special protection measures are necessary to keep the region around these nests free from disturbance during the nesting season. This significant habitat area is as more fully described in the Worcester County Chesapeake Bay Critical Area Program.

General requirements. The County shall provide for the protection of the known habitats of species in need of conservation and threatened and endangered species and also the habitats of these species that may be identified in the future. Protection measures for these habitat protection areas are to be developed in the following way:

Local jurisdictions may defer development of protection measures until such time as an activity is proposed within a protection area.

Worcester County shall review the proposed activities on a case-by-case basis and seek technical advice from the Department of Natural Resources. Development of property located within the Critical Area of Worcester County will require a site specific survey to be submitted along with design plans and a written description of the measures the property owner proposes to take to protect any habitats identified. This information concerning habitats will be incorporated into the County's Resource Inventory Maps for future reference.

Standards for bald eagle protection. A three-zone protection area of one-fourth mile (one thousand three hundred twenty feet) in radius around each bald eagle nest shall be established and within the zones the County shall comply with the following recommended protection measures:

Zone 1 shall include the area extending from the nest out to a radius of three hundred thirty feet from the nest. In this zone, timber cutting, land clearing, and development activities are prohibited. Hiking, fishing, and agricultural activities may be permitted from June 16 to December 14. These activities and human activity in general shall not be permitted in this zone from December 15 to June 15.

Zone 2 extends from the outer limit of Zone 1 to a radius of six hundred sixty feet from the nest. In this zone, major habitat changes shall be avoided, including clear-cutting, land clearing, and development activity. Hunting, hiking, fishing, and agricultural activities may be permitted from June 16 to December 14. These activities and human activity in general shall not be permitted in this zone from December 15 to June 15. Agricultural activities may be permitted if Department of Natural Resources data indicate that the nesting eagles are tolerant of these activities. From August 16 to November 14, selective thinning and maintenance of timber stands and building and road maintenance may be permitted.

Zone 3 extends from the outer limit of Zone 2 to a radius of one thousand three hundred twenty feet from the nest. Timber cutting, land clearing, and development activities shall be restricted from December 15 to June 15. Other activities in this zone that are within sight of the eagles on the nest may need to be restricted during this time period in accordance with Department of Natural resources recommendations.

If a bald eagle nest has not been used for three successive nesting seasons, then any protective regulations applied to the specific site may be removed after verification by the Department of Natural Resources that the nest has been abandoned.

Implementation. The owner of any property containing a portion of, or adjacent to, a habitat of a threatened or endangered species or a species in need of conservation on which a land altering or land development activity is proposed shall prepare and submit a habitat protection plan, as described in Subsection (e) below, to the Department of Development Review and Permitting prior to beginning the activity. The Department of Development Review and Permitting will request review and comments from the Department of Natural Resources. A land altering activity shall include, but not be limited to, such activities as subdivision, timbering, sand and gravel mining, clearing new farmlands, and the construction of homes or commercial structures.

Management agreements, easements, and acquisition efforts shall be subject to the approval of the Maryland Department of Natural Resources and other appropriate public agencies, private organizations and affected landowners.

Habitat protection plans. Habitat protection plans shall consist of the following elements:

Designation of a protection area or buffer around each of the habitats occurring on a particular site or in the jurisdiction where development activities are proposed. Development activities and other disturbances shall be prohibited within the protection areas unless it can be shown that these activities or disturbances will not have or cause adverse impacts on these habitats.

Development and implementation of specific protection measures or best management practices such as time of year restrictions, landscaped buffers, water quality control structures, etc. designed to protect the habitat from adverse impacts associated with a change in land use, development activity, or increased human activity.

Public notice. The determination of the existence and extent of these habitats and protection areas shall result from a cooperative effort between the Department of Development Review and Permitting and public agencies or private organizations. Designation of habitat and protective measures may not be accomplished unless the affected public is given an adequate opportunity to be heard. If additional habitat areas are designated in the future, as desired by the local government, or if the Secretary of the Department of Natural Resources designates additional species and/or habitat areas, a public hearing, as appropriate, shall be held to consider comments on these areas and the protection measures proposed. The protection measures shall be adopted within twelve months of the date of the Secretary's designation.

The establishment of habitat protection areas shall not be intended to restrict or affect, beyond any existing local, state or federal laws or regulations, or, on private land, any private restrictions, such activities as non-commercial passive recreation, educational pursuits, scientific observation, or non-commercial hunting, trapping or fishing.

Development activities in areas of threatened or endangered species in need of conservation may be subject to other provisions and requirements of this Program.

§ NR 3-221 Plant and wildlife habitat and non-tidal wetlands protection plan.

Description. The following plant and wildlife habitats shall be identified in the Critical Area:

Colonial water bird nesting sites;

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

Existing riparian forests, including relatively mature forests of at least three hundred 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, including relatively mature forested areas within the Critical Area of one hundred acres or more or forest connected with such areas;

Other plant and wildlife habitats determined to be of local significance and so designated by resolution of the County Commissioners;

Natural heritage areas which have been designated; and

Non-tidal wetlands.

General requirements. The requirements of Worcester County regarding plant and wildlife habitat in the Critical Area shall be 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;

Protect those wildlife habitat types and plant communities which are determined by the County to be of local significance;

Protect natural heritage areas; and

Protect and conserve non-tidal wetlands.

Standards. In addition to the standards set forth in § NR 3-219 for the protection of the buffer, the following standards shall apply to new development and redevelopment within the Critical Area:

Any development or significant land use change of property located within the Critical Area of Worcester County will require a site-specific survey to determine the presence of any plant and wildlife habitat areas. The survey shall be submitted along with design plans and a written description of the measures the property owner proposes to take to protect the habitats identified. This information concerning habitats will be incorporated onto the Resource Inventory Maps for future reference.

The County may seek additional information and comments from the Department of Natural Resources and other appropriate agencies and adjacent jurisdictions.

For development activities in the RCA and LDA, wildlife corridors shall be established and used to connect the area left in forest cover with any large forest tracts which are located outside of the area of the property being developed or subdivided. The area left in forest cover shall be adjacent to larger forest, not left as an isolated island of trees. Planting required as a mitigation measure shall also be adjacent to other habitats. Tree planting which serves only as a visual screening does not meet these requirements.

Buffer areas for colonial water bird nesting sites shall be established (if such birds are found to exist in the Critical Area) so that these sites are protected from the adverse impacts of development activities and from disturbance during the breeding season.

New water-dependent facilities shall be located to prevent disturbance to sites of significance to wildlife such as historic, aquatic staging and concentration areas for waterfowl.

Protection measures, including a buffer area, shall be established where appropriate for other plant and wildlife habitat sites identified in this Subtitle.

Forested areas required to support wildlife species identified above in § NR 3-221(c)(3) and (4) shall be protected and conserved by developing management programs which have as their objective conserving the wildlife that inhabit or use the areas. Development activities or the clearing or cutting of trees which might occur in the areas shall be conducted so as to conserve riparian habitat, forest interior wildlife species and their habitat. Management measures may include incorporating appropriate wildlife protection elements into timber harvest plans, forest management plans, cluster zoning or other site design criteria which provide for the conservation of wildlife habitat. Measures may also include soil conservation plans which have wildlife habitat protection provisions appropriate to the areas defined above, and incentive programs which use the acquisition of recorded easements in perpetuity and other similar techniques.

When development activities or the cutting or clearing of trees occurs in forested areas, corridors of existing forest or woodland vegetation shall be maintained to the extent practical to provide effective connections between wildlife habitat areas.

Those plant and wildlife habitats considered to be of local significance by the County shall be protected. Examples of these are those whose habitat values may not be of statewide significance but are of importance locally or regionally because they contain species uncommon or of limited occurrence in the jurisdiction or because the species are found in unusually high concentrations.

Natural heritage areas shall be protected from alterations due to development activities or cutting or clearing so that the structure and species composition of the areas are maintained.

The following areas within the Critical Area of Worcester County are officially identified and designated as natural heritage areas:

Hickory Point Cypress Swamp.

Lower Nassawango Creek.

Mataponi.

Development activities or cutting and clearing in natural heritage areas shall be prohibited unless an analysis is performed and measures proposed to mitigate any adverse impacts of the proposed activities. The analysis and mitigation measures shall be prepared by qualified professionals (e.g., ornithologists, zoologists, environmental engineers and planners) at the expense of the applicant and shall address the expected effects on the natural environment within the natural heritage area.

The analysis shall be submitted to the Worcester County Department of Development Review and Permitting which will then submit it to the State Department of Natural Resources for review and comment. Upon receiving said comment and, if appropriate, upon seeking the advice of expert consultants, the Department of Development Review and Permitting shall find against or in favor of the activities or may make suggestions for changing the analysis and ask the applicant to resubmit the analysis. The initial analysis review between the Department of Development Review and Permitting and the State Department of Natural Resources shall be completed within sixty days from submission. The State Department of Natural Resources shall make a recommendation for consideration by the Department of Development Review and Permitting in making its decision as to whether to find against or in favor of the activities.

Public notice. The determination of the existence and extent of plant and wildlife habitats shall result from a cooperative effort between the County and public agencies or private organizations. Designation of habitat and protective measures may not be accomplished unless the affected public is given an adequate opportunity to be heard. If additional plant and wildlife habitat areas are to be designated in the future, local public hearings, as appropriate, shall be held to consider comments on the areas and protection measures proposed.

§ NR 3-222 Anadromous fish propagation waters.

Identification. The County has identified and mapped anadromous fish propagation waters as defined in § NR 3-202 and these maps are available at the Worcester County Department of Development Review and Permitting.

General requirements. The requirements of the County with regard to anadromous fish propagation waters shall be to:

Protect the instream and streambank habitat of anadromous fish propagation waters;

Promote land use policies and practices in the watershed of spawning streams within the Critical Area which will 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.

Standards. Within anadromous fish propagation watersheds, the following measures are required:

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 water quality and fisheries habitat can be improved.

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

The County shall require each development activity that occurs within a watershed draining to anadromous fish propagation waters to fulfill the following objectives:

Minimize development activities or land disturbances within the watershed;

Maintain, or, if practicable, improve water quality in affected streams or other water bodies;

Minimize to the extent possible the discharge of sediments into affected streams or other water bodies;

Maintain, or, if practicable, increase the natural or native vegetation of the watershed and tree canopy over the streams;

Indicate how any portion or the development activity outside the Critical Area will maintain or improve water quality of the affected watershed;

§ NR 3-223 Water-dependent facilities.

Identification. Water-dependent facilities include, but are not limited to, ports, the intake and outfall structures of power plants, water-use industries, marinas and other boat docking structures, public beaches and other public water-oriented recreation areas, and fisheries activities. Excluded from this regulation are individual private piers installed or maintained by riparian landowners which are located in a subdivision which does not provide community piers.

General requirements. The requirements of the County with regard to water-dependent facilities shall be to limit development activities in the buffer to those that are water-dependent and provide by design and location criteria that these activities will have minimal individual and cumulative impacts on water quality and fish, wildlife, and plant habitat in the Critical Area.

Standards. The following standards shall apply to new or expanded development activities associated with water-dependent facilities:

New or expanded development activities may be permitted in the buffer in the Intensely Developed and Limited Development Areas, provided that it can be shown:

That they are water-dependent;

That the project meets a recognized private right or public need;

That adverse effects on water quality, fish, plant and wildlife habitat are minimized;

That, insofar as possible, non-water-dependent structures or operations associated with water-dependent projects or activities are located outside the buffer; and

That the facilities are consistent with an approved local plan as set forth below.

Except as otherwise provided in this subtitle, new or expanded development activities may not be permitted in those portions of the buffer which occur in Resource Conservation Areas.

Implementation. Applicants for new or expanded water-dependent facilities in Intensely Developed Areas or Limited Development Areas shall set out in the application how the above requirements are met. Applicants for water-dependent facilities in a Resource Conservation Area must apply for a portion of the County's growth allocation as set forth in § NR 3-207 of this Subtitle.

Evaluating plans for new and expanded water-dependent facilities. The Worcester County Department of Development Review and Permitting shall evaluate on a case-by-case basis all proposals for expansion of existing or new water-dependent facilities. The Department shall work with appropriate state and federal agencies to ensure compliance with applicable regulations. The following factors shall be considered when evaluating proposals for new or expanded water-dependent facilities:

That the activities will not significantly alter existing water circulation patterns or salinity regimes;

That the water body upon which these activities are proposed has adequate flushing characteristics in the area;

That disturbance to wetlands, submerged aquatic plant beds, or other areas of important aquatic habitats will be minimized;

That adverse impacts to water quality that may occur as a result of these activities, such as non-point source run-off, sewage discharge from land activities or vessels, or from boat cleaning and maintenance operations, is minimized;

That shellfish beds will not be disturbed or be made subject to discharge that will render them unsuitable for harvesting;

That dredging shall 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, generally;

That dredged spoil will not be placed within the buffer or elsewhere in that portion of the Critical Area which has been designated as a habitat protection area except as necessary for:

Backfill for permitted shore erosion protection measures;

Use in approved vegetated shore erosion projects;

Placement on previously approved channel maintenance spoil disposal areas; and

Beach nourishment.

That interference with the natural transport of sand will be minimized; and

That disturbance will be avoided to historic areas of waterfowl staging and concentration or other habitat protection areas identified in §§ NR 3-218 through NR 3-222 of this Subtitle.

Industrial and port-related facilities. New, expanded or redeveloped industrial or port-related facilities and the replacement of these facilities may be permitted only in those portions of Intensely Developed Areas exempted from buffer designation as discussed in § NR 3-219(e) of this Subtitle and are subject to the provisions set forth in that section.

(g)

Marinas and other commercial maritime facilities. New, expanded or redeveloped marinas may be permitted in the buffer within Intensely Developed Areas and Limited Development Areas subject to the requirements set forth in this section . New marinas or related maritime facilities may not be permitted in the buffer within Resource Conservation Areas except as provided in Subsection (i) below. Expansion of existing marinas may be permitted by the Worcester County Department of Development Review and Permitting within Resource Conservation Areas, provided that it is sufficiently demonstrated that the expansion will not adversely affect water quality, and that it will result in an overall net improvement in water quality at or leaving the site of the marina. New and existing marinas shall meet the sanitary requirements of the Department of the Environment as required in COMAR 26.04.02. New marinas shall establish a means of minimizing the discharge of bottom wash waters into tidal waters.

(h)

Community piers. New or expanded community marinas and other non-commercial boat-docking and storage facilities may be permitted in the buffer subject to the following requirements:

These facilities may not offer food, fuel, or other goods and services for sale and shall provide adequate and clean sanitary facilities;

The facilities are community-owned and established and operated for the benefit of the residents of a platted and recorded riparian subdivision;

The facilities are associated with a residential development approved by the County for the Critical Area and consistent with all state requirements and program requirements for the Critical Area;

Disturbance to the buffer is the minimum necessary to provide a single point of access to the facilities; and

If community piers, slips, or moorings are provided as part of the new development, private piers in the development are not allowed.

The number of slips, or piers, permitted at the facility shall be the lesser of Subsection (h)(6)A or B below:

One slip for each fifty feet of shoreline in the subdivision in the Intensely Developed and Limited Development Areas and one slip for each three hundred feet of shoreline in the subdivision in the Resource Conservation Area; or

A density of slips or piers to platted lots or dwellings within the subdivision in the Critical Area according to the following schedule:

	Platted Lots or Dwellings in the Critical Area	Slips
	Up to 15	1 for each lot
	16 - 40	15 or 75% whichever is greater
	41 - 100	30 or 50% whichever is greater
	101 - 300	50 or 25% whichever is greater
	Over 300	75 or 15% whichever is greater

(i)

Public beaches and other public recreation or education areas. Public beaches or other public water-oriented recreation or education areas including, but not limited to, publicly owned boat launching and docking facilities and fishing piers may be permitted in the buffer in Intensely Developed Areas. These facilities may be permitted within the buffer in Limited Development Areas and Resource Conservation Areas, provided that:

Adequate sanitary facilities exist;

Service facilities are, to the extent possible, located outside the buffer;

Permeable surfaces are used to the extent practicable, if no degradation of groundwater would result;

Disturbance to natural vegetation is minimized; and

Areas for possible recreation, such as nature study, and hunting and trapping, and for education, may be permitted in the buffer within Resource Conservation Areas if service facilities for these uses are located outside of the buffer.

(j)

Research areas. Water-dependent research facilities or activities operated by state, federal, or local agencies or educational institutions may be permitted in the buffer, if non-water-dependent structures or facilities associated with these project are, to the extent possible, located outside of the buffer.

(k)

Fisheries activities. Lands and water areas with high aquacultural potential will be identified by the County in cooperation with the state when applications for new or expanded fisheries or aquaculture facilities in these areas are submitted to the County. These areas are encouraged for that use and if so used, should be protected from degradation by other types of land and water use or by adjacent land and water uses. Commercial water-dependent fisheries including, but not limited to structures for crab shedding, fish off-loading docks, shellfish culture operations and shore-based facilities necessary for aquaculture operations and fisheries activities may be permitted in the buffer in Intensely Developed, Limited Development and Resource Conservation Areas.

§ NR 3-224 Structures on piers.

Standards. Except as provided in Subsections (a)(1), (2), and (3) below, the County may not issue a building permit for any project involving the construction of a dwelling unit or other non-water-dependent structure on a pier located on state or private tidal wetlands within the Critical Area.

The County may issue a building permit for a project involving the construction of a dwelling unit or other non-water-dependent structure on a pier located on State or private wetlands within the Critical Area that was issued a permit by the Department of Natural Resources on or before January 1, 1989.

The County may issue a building permit for a project involving the construction of a dwelling unit or other non-water-dependent structure on a pier located on state or private wetlands within the Critical Area if the following conditions exist:

The project is constructed on a pier that existed as of December 1, 1985, that can be verified by a Department of Natural Resources aerial photograph dated 1985, accompanied by a map of the area;

The project does not require an expansion of the pier greater than twenty-five percent of the area of piers or dry docks removed on the same property; however, additional expansion may be allowed in the amount of ten percent of the water coverage eliminated by removing complete piers from the same or other properties. If the horizontal surface of a pier to be removed is not intact, but pilings identify its previous size, then that area may be used in determining the additional expansion permitted. The project expansion based on water coverage eliminated can be considered only if all non-functional piers on the property are removed except for the project pier. The total expansion may not exceed thirty-five percent of the original size of the piers and dry docks removed;

The project is approved by the Worcester County Department of Development Review and Permitting and Worcester County Shoreline Commission;

The project is located in an Intensely Developed Area (IDA) as designated in programs approved by the Critical Area Commission.

The County may issue a building permit for the repair of an existing dwelling unit or other non-water-dependent structure on a pier located on state or private wetlands within the Critical Area.

If a structure that is not water-dependent is to be permitted by the County under the exceptions included in this section, an applicant is required to demonstrate that the project will meet the following environmental objectives using the standards established under the County's Critical Area Program:

The construction and operation of the project will not have a long term adverse effect on the water quality of the adjacent body of water;

The quality of stormwater runoff from the project will be improved; and

Sewer lines or other utility lines extended for the pier will not affect the water quality of adjoining waters.

§ NR 3-225 Shore erosion protection works.

Generally. As an alternative to structural erosion controls which can disturb the aquatic environment and increase erosion downstream, the County encourages the use of non-structural controls such as marsh creation, maintenance of buffer zones, and the establishment of natural barriers to prevent intrusion on fragile vegetated shorelines. The criteria set forth in this Subtitle are not intended to apply to those structures necessarily associated with water-dependent facilities as discussed in § NR 3-224 of this Subtitle.

General requirements. In protecting shore areas from erosion the County shall follow these requirements:

Encourage the protection of rapidly eroding portions of the shoreline in the Critical Area by public and private landowners;

Where such measures can effectively and practically reduce or prevent shore erosion, encourage the use of non-structural shore protection measures in order to conserve and protect plant, fish and wildlife habitat.

Implementation. The County shall require that each application for shore erosion protection demonstrate how it complies with the following objectives:

Structural control measures shall only be used in areas where appreciable erosion occurs and where non-structural measures would not be practical or effective in controlling erosion.

Where structural erosion control is required, the measure that best provides for conservation of fish and plant habitat and which is practical and effective shall be used;

Non-structural measures shall be utilized in areas of erosion where they would be a practical and effective method of erosion control;

Structural erosion measures shall not 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.

Process. The County, in reviewing any application for a permit for structural erosion control devices, shall refer the application to the Soil Conservation District and to the Department of Natural Resources for field verification of the need for the structural erosion control as well as for recommendations on proposed erosion control mechanisms.

Any application made to the County for the installation of an erosion control device must, at a minimum, include the following information:

Photograph of erosion problem;

The specific location of the site on a U.S. Geological Survey 7 1/2 minute topographic quadrangle map (scale 1:24,000);

Soil type and erodibility;

Proposed and existing land use.