Article V. Water Quality Review in Special Protection Areas.

Sec. 19-60. Findings and purpose.

(a) The County Council finds that streams, rivers, wetlands,

and other sensitive environmental features in Montgomery County
constitute an important natural resource. Protecting, maintaining,
and restoring the biological, physical, and chemical integrity of the
waters in the County will protect the public health and general
welfare, provide for a varied aquatic life, appropriate recreational
uses, and other water uses, and serve the purposes of applicable
federal and state laws and regulations. Protection of fragile
watershed areas will help restore and maintain the integrity of the
Anacostia River, Potomac River, and Patuxent River within Montgomery
County and the Chesapeake Bay.

(b) The purposes of this Article are to:

(1) implement monitoring programs in special protection

areas to help attain the goals of the County's water quality laws and
regulations;

(2) establish coordinated procedures, performance goals,

criteria, and requirements for development in special protection areas
that will mitigate adverse impacts on water resource areas during and
after construction or other land disturbing activities;

(3) ensure no net wetland loss as a result of

development;

(4) authorize a fee to administer and enforce this

Article, including monitoring development impacts on streams in
special protection areas; and

(5) provide a focused and coordinated approach for

County water quality protection and monitoring in special protection
areas. (1994 L.M.C., ch. 32, § 1.)

Sec. 19-61. Definitions.

In this Article, the following words and phrases have the

following meanings:

(a) Best Management Practices means techniques that are most

effective in eliminating or reducing the amount of pollution or other
detrimental impact to a watershed or wetland.

(b) Best Management Practices Monitoring Plan means a

statement prepared by an applicant describing how the applicant will
monitor and assess the effectiveness of its best management practices.
 (c) Department or DPS means the Department of Permitting
Services.

(d) Director or DPS Director means the Director of the

Department of Permitting Services or the Director's designee.

(e) Erosion and Sediment Control Concept Plan means a

statement or drawing or both describing how erosion and sediment,
resulting from a development, will be controlled or managed to
minimize the discharge of pollutants into surface waters.

(f) Land Use Plan means the County's General Plan ("On Wedges
and Corridors") and all amendments or additions, including master
plans, sector plans, and functional plans, adopted by the District
Council.

(g) Planning Director means the Director of the Montgomery

County Planning Department or the Director's designee.

(h) Special Protection Area means a geographic area where:

(1) existing water resources, or other environmental

features directly relating to those water resources, are of high
quality or unusually sensitive; and

(2) proposed land uses would threaten the quality or

preservation of those resources or features in the absence of special
water quality protection measures which are closely coordinated with
appropriate land use controls.

(i) Stormwater Management Concept Plan means a statement or

drawing or both describing how water quality impacts and stormwater,
resulting from a development, will be controlled or managed to
minimize the discharge of pollutants into surface waters.

(j) Stormwater Management Plan is defined in Section 19-21.

(k) Stream Monitoring Plan means a statement prepared by the

Department of Environmental Protection describing the location of
monitoring stations and the nature, form, and frequency of monitoring
to be conducted to evaluate the impacts of development on water
resources in a special protection area. A plan must also describe
what will be monitored with regard to faunal groups, streams and
riparian habitat features, biological features, and physical and
chemical properties.

(l) Stream Monitoring Program means activities conducted by

the Department of Environmental Protection to carry out a stream
monitoring plan for property in a special protection area, including:
 (1) an inventory and evaluation of water resources to
measure baseline conditions; and

(2) an assessment of any impairment of the biological,

chemical, and physical integrity of the stream over time related to
development impacts in any special protection area.

(m) Technical Manual means a detailed guidance document

prepared jointly by the Departments of Environmental Protection and
Permitting Services, in consultation with the Planning Board, and used
to implement this Article.

(n) Water Quality Certification means State authorization

required under Section 401 of the Clean Water Act for any federally
permitted activity impacting jurisdictional waters of the United
States, certifying that the activity complies with Maryland's water
quality standards. (1994 L.M.C., ch. 32, § 1.; 1996 L.M.C., ch. 20, §
1; 1998 L.M.C., ch. 12, § 1; 2001 L.M.C., ch. 14, § 1; 2002 L.M.C.,
ch. 16, § 2.)

Sec. 19-62. Applicability.

(a) Designation. The Council may designate a geographic area

as a special protection area by identifying the area in:

(1) a land use plan;

(2) the Comprehensive Water Supply and Sewer System

Plan;

(3) a watershed plan; or

(4) a resolution adopted after at least 15 days notice

and a public hearing.

(b) Privately owned property. Except as otherwise expressly

provided in this Chapter, the requirements for a water quality
inventory and a preliminary and final water quality plan apply in any
area designated as a special protection area to a person proposing a
land disturbing activity on privately owned property:

(1) who is required by law to obtain approval of a

development plan, diagrammatic plan, schematic development plan,
project plan, special exception, preliminary plan of subdivision, or
site plan; or

(2) who is seeking approval of an amendment to an

approved development plan, diagrammatic plan, schematic development
plan, project plan, special exception, preliminary plan of
subdivision, or site plan.
 (c) Publicly owned property. Before engaging in any land
disturbing activity on publicly owned property in an area designated
as a special protection area, the applying agency or department should
prepare a combined preliminary and final water quality plan.

(d) Recorded plats. This Article does not apply to any

project on property which would otherwise be subject to the
requirements of this Section that has a valid, approved record plat
for the entirety of the project and for which no amendment is required
to accommodate the project on or before October 31, 1994. (1994
L.M.C., ch. 32, § 1.)

Sec. 19-63. Exemptions.

(a) Any applicant covered by Section 19-62 whose property is

in a special protection area must submit a water quality inventory.

(b) An applicant who submits a water quality inventory under

Section 19-64(a) and whose development does not exceed the following
limits need not submit a water quality plan, unless the applicant is
specifically required to submit a water quality plan in a land use
plan, watershed plan, Comprehensive Water Supply and Sewer System
Plan, or Council resolution designating a special protection area, if:

(1) a project on property zoned for agricultural,

residential, or mixed use contains:

(A) a proposed impervious area of less than 8% of

the total land area covered by the development approval application;
or

(B) a cumulative land area of 10 acres or less, and

a proposed impervious area of less than 15% of the total land area
covered by the development approval application;

(2) a project on property zoned for industrial or

commercial use consists of a cumulative land area of 2 acres or less
covered by the development approval application.

(c) An applicant must not avoid the application of this

Article by submitting piecemeal applications for property under common
or related ownership.

(d) If an application for new or additional development

approval is submitted for property that was either:

(1) previously approved for development, and exempt

under subsection (b); or
 (2) part of a larger tract of land located in a special
protection area that was:

(A) approved for development under this Article;

and

(B) under common or related ownership when it was

approved for development; the Department or Planning Board, as
applicable, in reviewing an application under this Article must assess
the cumulative impact of all previously approved development. (1994
L.M.C., ch. 32, § 1; 1995 L.M.C., ch. 22, § 1; 1996 L.M.C., ch. 20, §
1; 1998 L.M.C., ch. 12, § 1; 2001 L.M.C., ch. 14, § 1; 2002 L.M.C.,
ch. 16, § 2.)

Sec. 19-64. Water Quality Inventory Submittal; Water Quality Plans.

(a) Water quality inventory submittal. A person who is

required under Section 19-62 to comply with this Article must submit
the following documents as part of a proposed development plan,
diagrammatic plan, schematic development plan, project plan,
preliminary plan of subdivision, site plan, or special exception,
whichever is first required. Each submission must be reviewed by the
receiving agency as part of the plan or permit application, as
provided by law.

(1) Stormwater management concept plan;

(2) Erosion and sediment control concept plan;

(3) Documentation showing avoidance or minimization of

impacts on environmentally sensitive areas and priority forest
conservation areas as specified in the Planning Board's Environmental
Guidelines, and an analysis of available alternatives;

(4) Preliminary plan describing the proposed development

which minimizes impervious area and, if applicable, meets
imperviousness limits for the project as are required in a land use
plan, watershed plan, or Comprehensive Water Supply and Sewer System
Plan; and

(5) Any other information required in the technical

manual.

(b) Preliminary water quality plan submission. Except where

exempt under this Article, a person must submit the following, in
addition to any information required for a water quality inventory, as
part of a complete application for development approval as provided in
Section 19-65(b):
 (1) Description of the development proposal and all
submissions normally required by law or regulation;

(2) Documentation of application for state or federal

wetland permit;

(3) Description of any other mitigation techniques

proposed by the applicant or required by applicable guidelines, law,
or regulations;

(4) Documentation of anticipated performance on water

quality of each proposed measure, individually and together; and

(5) Proposed best management practices monitoring plan,

including:

(A) Location, nature, form, and frequency of the

monitoring to be conducted; and

(B) Dates of report submissions and monitoring

milestones.

(c) Final water quality plan submission. A final water

quality plan must be submitted as provided in Section 19-65 and must
include the following:

(1) Stormwater management concept plan, revised as

required by the Director, that identifies all proposed mitigation
techniques and an analysis of how these measures will meet applicable
performance criteria;

(2) Erosion and sediment control concept plan, revised

as required by the Director;

(3) Proposed compliance program, revised as required by

the Director, that describes the installation, inspection, and
monitoring schedule of best management practices monitoring plan,
including detailed instructions concerning how the facilities operate
and should be maintained;

(4) Draft maintenance agreements and easements covering

routine maintenance, long-term repair or replacement of any stormwater
management facility or other facilities required by the water quality
plan, and an assurance of access to the facilities for inspection;

(5) Copy of valid water quality certification approved

by state and federal agencies or, if not available, a report on the
status of the certification review and a copy of any revisions made to
the certification application;
 (6) Terms, conditions, and requirements as established
in the approved preliminary water quality plan, or in the case of a
preliminary water quality plan in conjunction with a development
approval before the District Council, the terms, conditions, and
requirements as required to be revised by the Planning Board or DPS
Director to conform to the District Council action on the development
plan, schematic plan, or diagrammatic plan;

(7) Any other information required in the technical

manual. (1994 L.M.C., ch. 32, § 1; 1996 L.M.C., ch. 20, § 1; 1998
L.M.C., ch. 12, § 1; 2001 L.M.C., ch. 14, § 1; 2002 L.M.C., ch. 16, §
2.)

Sec. 19-65. Application, review, and approval procedures.

(a) General.

(1) Coordinated with project review. Water quality

review, including submittal and review of the preliminary and final
water quality plans, where required, must be done in conjunction with
the review process for a development plan, diagrammatic plan,
schematic development plan, project plan, preliminary plan of
subdivision, site plan, or special exception in accordance with this
Section. The Planning Director must coordinate review of the water
quality plan with the DPS Director.

(2) Division of approval responsibilities. To avoid

duplication of effort, responsibilities for review and approval of
water quality plans are divided as follows:

(A) In acting on a preliminary or final water

quality plan, the Planning Board has lead agency responsibility for:

(i) Conformity with all policies in the

Planning Board's Environmental Guidelines which apply to special
protection areas;

(ii) Conformity with any policy or requirement

for special protection areas, including limits on impervious area, in
a land use plan, watershed plan, or the Comprehensive Water Supply and
Sewer System Plan; and

(iii) Any other element of the plan in which

the Planning Board has primary lead agency design, review, and
approval responsibility.

(B) In acting on a preliminary or final water

quality plan, the Planning Board's approval must conform to the
approval of the DPS Director on any element for which the DPS Director
has lead agency responsibility. Those elements include:
 (i) Performance goals or criteria for the
approved best management practices;

(ii) Best management practices monitoring

plan;

(iii) Stormwater management concept plan;

(iv) Erosion and sediment control concept

plan; and

(v) Any other element of the plan for which

the Department has primary lead agency design, review, and approval
responsibility.

(C) The Department of Environmental Protection has

the lead agency responsibility for the stream monitoring program,
including the stream monitoring plan.

(3) Amendments and minor modifications to an approved

plan.

(A) Significant amendment. Any written request to

amend a development approval which involves any significant alteration
to a water quality plan must undergo review as described in subsection
(b), except as otherwise modified by regulation.

(B) Minor modification. The Planning Director or

the DPS Director may approve a modification to an approved water
quality plan, for any element in their respective jurisdictions, which
is consistent with this Chapter if:

(i) inspections or design evaluations reveal

minor inadequacies in the plan; or

(ii) the modification is required by permit

conditions and does not significantly affect site layout.

(C) Emergency situation. The Planning Director or the

DPS Director may approve a modification or exception to an approved
water quality plan for any element in their respective jurisdictions
where necessary in an emergency situation.

(b) Application.

(1) The applicant must submit to the Planning Director a

preliminary water quality plan as part of a complete application for a
development plan, diagrammatic plan, schematic plan, project plan,
preliminary plan of subdivision, or site plan, whichever is first
required. For a special exception that is subject to this Chapter,
the applicant must submit a preliminary water quality plan as part of
the special exception application to the Board of Appeals. For a
project on publicly owned property, the agency or department should
submit the water quality plan in conjunction with the mandatory
referral process.

(2) If the development proposal requires more than one

of the approvals listed in paragraph (1), the applicant must submit a
preliminary water quality plan to the Planning Director in conjunction
with the first approval and a final water quality plan in conjunction
with the last approval.

(3) If only one approval listed in paragraph (1) is

required, an applicant, with the approval of the Planning Board, must
submit a combined preliminary and final water quality plan.

(c) Review. After receiving a preliminary or final water

quality plan, the Planning Director must refer the plan to the DPS
Director and other reviewing agencies. The DPS Director must transmit
to the Planning Director within the time limits for acting on a plan
established by law:

(1) Findings on compliance with this Chapter of any:

(A) stormwater management concept plan;

(B) erosion and sediment control concept plan;

(C) best management practices monitoring plan;

(D) stream monitoring plan as prepared and

implemented by the Department of Environmental Protection;

(E) maintenance agreements and easements; and

(F) other element of a plan in which the Department

has primary lead agency review and approval responsibility.

(2) Comments, if any, on any element of a plan in which

the Planning Board has primary lead agency review and approval
responsibility, including any determination of conformance with a land
use plan, watershed plan, or the Planning Board's Environmental
Guidelines.

(d) Condition of approval.

(1) In the case of a water quality plan in conjunction

with a development plan, schematic development plan, or diagrammatic
plan, Planning Board action on the water quality plan must conform to
Section 59-D-1.23, Section 59-D-2.53, and Section 59-D-4.61,
respectively.

(2) In the case of a water quality plan in conjunction

with a special exception, the Planning Board, after holding a public
hearing and finding that the plan meets the standards of this Article,
must approve a water quality plan and forward the approved plan to the
Board of Appeals with its recommendation on the special exception in
accordance with Section 59-G-1.2.

(3) The final water quality plan, as amended by the

Planning Board, must be a condition of approval of the development
application and must conform to:

(A) changes made by the DPS Director to elements

that are in DPS's jurisdiction under subsection (a)(2);

(B) any requirements and limits of the state water

quality certification and wetland permit, as approved or, if not yet
approved, as applied for, and other regulatory approvals, not
inconsistent with the certification or permit;

(C) any regulations and guidelines, including any

policies or requirements in a land use plan, watershed plan, or
Comprehensive Water Supply and Sewer System Plan concerning water
quality protection in a special protection area;

(D) any bond provisions required under Section 19-

10 and 19-32, and to ensure implementation of best management
practices monitoring and any element in the water quality plan
required by the Planning Board;

(E) provisions to implement the best management

practices monitoring plan; and

(F) any other condition necessary to implement this

Article.

(4) For a water quality plan for a project on public

property, the Planning Board, after public hearing which may be
conducted when the Board considers a mandatory referral application,
must determine if the plan meets the standards of this Article. The
applying agency or department should not engage in land disturbing
activities that are inconsistent with the approved combined water
quality plan unless the applying agency has found that the water
quality protection measures it would otherwise use meet the purposes
of this Chapter. (1994 L.M.C., ch. 32, § 1; 1996 L.M.C., ch. 20, § 1;
1998 L.M.C., ch. 12, § 1; 2001 L.M.C., ch. 14, § 1; 2002 L.M.C., ch.
16, § 2.)
Sec. 19-66. Enforcement, appeals, waiver.

(a) Enforcement agreement. Each final water quality plan must

contain an enforceable agreement, including an approved financial
security instrument, with the Planning Board and the DPS Director,
requiring maintenance of all facilities required by the plan and best
management practices monitoring. The financial security instrument
may be combined with any other financial security instrument required
by this Chapter.

(b) Transference of responsibility. Each approved final water

quality plan for a residential project must provide that ownership and
maintenance of any feature of the water quality plan must not be
transferred to a homeowners association or any resident until the DPS
Director or the Planning Board, depending on which is the lead agency
to review the feature, finds that:

(1) each feature has been installed in accordance with

the specifications shown on the approved plan;

(2) each feature has been verified, by inspection,

monitoring, or otherwise, to have been operational and functioning as
designed for a reasonable period of time after construction of all
units and facilities associated with the last phase of the development
project. The length of time must not exceed 5 years and must relate to
site-specific characteristics and the type and nature of the
particular feature; and

(3) homeowners association documents include detailed

instructions and a schedule concerning how the facilities and features
operate and should be maintained, and assure adequate funding for
routine and long term inspections, repair and maintenance of all
features shown on the approved plan.

(c) Appeals.

(1) An aggrieved person may appeal a final decision by

the Planning Board or the DPS Director concerning a final development
approval or permit in which the provisions of this Article are
applied.

(A) A final decision by the Planning Board occurs

when a written opinion concerning a development approval which
requires the implementation of a final water quality plan is mailed.

(B) A final decision by the DPS Director occurs

when the Department has approved, rejected, issued, modified, or
revoked a permit which requires the implementation of a final water
quality plan.
 (2) An appeal of a final decision by the Planning Board
must be filed with the Circuit Court within 30 days after the written
opinion is mailed. The DPS Director may intervene as a party in any
appeal involving the implementation of a final water quality plan. The
Board of Appeals does not have jurisdiction to hear any appeal arising
from a final decision by the Planning Board under this Article.

(3) An administrative appeal of a decision by the DPS

Director must be filed with the Board of Appeals within 30 days after
the decision is made. The Planning Board may present evidence to the
Board of Appeals concerning any element of a final water quality plan
that relates to its lead agency authority, if relevant to the appeal.

(d) Event of default.

(1) Events of default are:

(A) Required stormwater management facilities,

erosion and sediment control facilities, or other mitigation
techniques have not been installed or maintained in a correct manner.

(B) Monitoring under a best management practices

monitoring plan has not been performed or reported as required.

(C) An applicant has not complied with any other

requirement of a water quality plan or this Article.

(D) Required fees have not been paid to support a

stream monitoring program.

(2) If an event of default occurs, the Planning Board or

the DPS Director, as applicable, may, in addition to any other remedy
already permitted under this Chapter:

(A) issue an order prohibiting the applicant from

performing any further land disturbing activities on any developed or
undeveloped phase of the project until the applicant is in compliance,
or revoking or suspending a permit under Section 19-9.

(B) issue a citation for a Class A violation. Each

day a violation continues is a separate offense.

(C) take any legal action under Section 1-20 or

Chapter 50.

(e) Waiver.

(1) Written request. An applicant may apply for a waiver

from this Article or any regulation adopted under it if enforcement
would result in undue hardship to the applicant. The application must
be directed to either the Planning Board or the DPS Director, as
applicable.

(2) Review and action. After consulting reviewing

agencies and holding a public hearing, the Planning Board or the DPS
Director, as applicable, may waive any requirement if the applicant
shows by clear and convincing evidence that:

(A) the application of some or all requirements of

this Article would result in undue hardship to the applicant because
of events or circumstances not caused or facilitated by the applicant;

(B) the applicant would still comply with all

applicable federal, state, or county water quality standards; and

(C) the relief sought is the minimum needed to

prevent hardship. (1994 L.M.C., ch. 32, § 1; 1996 L.M.C., ch. 20, § 1;
1998 L.M.C., ch. 12, § 1; 2001 L.M.C., ch. 14, § 1; 2002 L.M.C., ch.
16, § 2.)

Sec. 19-67. Implementation.

(a) Stream monitoring program.

(1) Program. The Director of Environmental Protection

must design, develop, and implement a stream monitoring program as
described in regulations adopted under this Chapter.

(2) Priorities. The Director of Environmental Protection

must set priorities for monitoring subwatershed areas before
development. Priorities must be based on anticipated timing of
development within a 2-year period, as indicated by the Planning
Director.

(b) Regulations; technical manual; environmental guidelines;

performance goals and criteria.

The Departments of Permitting Services and Environmental

Protection, after consulting the Planning Board, must jointly adopt
regulations, including a technical manual and necessary procedures,
under method (2) to administer this Chapter. The Departments and the
Board must carry out their functions under this Article in accordance
with these regulations. The regulations must include:

(1) procedures and standards for preparing a water

quality inventory, preliminary or final water quality plans, and a
combined preliminary/final water quality plan;
 (2) procedures to enhance coordination between the
Department and the applicant where a wetland permit or water quality
certification is also required;

(3) supplementary requirements for stormwater management

and erosion and sediment control concept plans for special protection
areas;

(4) criteria for distinguishing minor and significant

amendments or modifications;

(5) standards for water quality protective measures

during and after construction, including special restrictions or
standards required for special protection areas;

(6) qualifications for persons submitting data under

this Article;

(7) procedures and standards for developing and

implementing a best management practices monitoring program;

(8) parameters of any generic and site-specific

performance goals under a best management practices monitoring
program;

(9) model language for an enforcement agreement or a

homeowners association maintenance agreement;

(10) performance criteria based on monitoring results

that will be used to evaluate water quality plans to ensure compliance
with all relevant federal, state, and county laws. Until monitoring
results are available, the Department must develop interim performance
goals; and

(11) other appropriate program requirements consistent

with this Article.

(d) Annual Report. The Directors of Environmental Protection

and Permitting Services jointly must prepare an annual report, in
coordination with the Planning Board, to the County Council that
describes the effectiveness of best management practices and the
observed impact of development on the biological integrity of streams
in special protection areas. The report must also discuss progress
made toward the development of best management practices performance-
based and in-stream biological enforcement mechanisms. A copy of the
report must be sent to the Planning Board and other responsible
agencies.

(e) Fee.
 (1) The Directors of Environmental Protection and
Permitting Services may set a fee in an amount not to exceed the
reasonable cost of administering and enforcing their respective duties
under this Article. The fee, including the time when it must be paid,
must be set by regulation under Method (3). The Planning Board may
set a fee under Chapter 50. A person to whom this Article applies
must pay the fees.

(2) The fees established under this subsection may be

based on the size of a tract or other relevant factor and are intended
to offset the cost of:

(A) permit review and enforcement of conditions;

and

(B) stream monitoring to determine the impact of a

particular development on stream water quality. (1994 L.M.C., ch.
32, § 1; 1996 L.M.C., ch. 20, § 1; 1998 L.M.C., ch. 12, § 1; 2001
L.M.C., ch. 14, § 1; 2002 L.M.C., ch. 16, § 2.)