2606.1 The Department may issue a permit or certification for an activity only if the Department finds that the applicant has demonstrated that the regulated activity will avoid, or if avoidance is not feasible, will minimize, impacts to wetlands and streams.

2606.2 When evaluating the extent to which a proposed project will avoid or minimize direct and indirect impacts to wetlands and streams, the Department may consider relevant factors including the following:

1. (a) Reduction in acreage of wetlands and streams impacted by a regulated activity;
2. (b) Harm to a federally threatened or endangered species or species of greatest conservation need, or to the critical habitat of these species;
3. (c) Impact on movement of wildlife indigenous to wetlands and streams;
4. (d) Ability of the wetlands or streams to continue to support and provide habitat for those species of wildlife using the area, if the proposed regulated activity were authorized;
5. (e) Hydrologic regime of the areas upstream and downstream of the area of impact, including headwaters;
6. (f) Functions of the impacted and adjacent wetlands and streams within the watershed, and an analysis of potential impacts of the applicant's action on adjacent wetlands, streams, and other waters within the watershed;
7. (g) Passage of normal and expected high flows, the relocation of District waters, and stream diversion;
8. (h) Subsurface water and groundwater flow into or out of any wetland area;
9. (i) Presence of fish or aquatic wildlife spawning areas, including submerged aquatic vegetation beds;
10. (j) Presence of adjacent areas of habitat having significant plant or wildlife function or value;
11. (k) Cumulative impact to wetlands, streams, and other District waters;
12. (l) The cost of fulfilling potential mitigation requirements based on the

proposed project configuration or design versus an alternative project configuration or design;

(m) The basic project purpose of the proposed project and how the basic project purpose relates to placement, configuration, and density of the wetland;

(n) The location of any existing structural and natural features that may dictate the placement or configuration of the proposed project;

(o) The applicant's efforts to:

(1) Modify the size, scope, configuration, or density of the project to avoid and minimize impacts to wetlands and streams;

(2) Remove or address site constraints, including zoning, infrastructure, access, and natural features, and otherwise avoid or minimize impacts; and

(3) Confine unavoidable impacts to the fringe or periphery of the wetlands and streams.

2606.3 If the Department determines that an applicant has not complied with the requirement to avoid and minimize impacts to wetlands, streams, and other District waters, the Department will provide to the applicant, in writing, its objections to the project.

2606.4 Within six (6) months of receipt of the Department's objections, the applicant shall submit an amended project proposal addressing the Department's objections, withdraw the application, or request an extension of time to resubmit an amended project proposal addressing the Department's objections, unless the Department allows a longer period of time.

2606.5 If the applicant fails to respond to the Department's objection in accordance with § 2606.4, the statement of objections shall constitute a denial.

SOURCE: Final Rulemaking published at 68 DCR 5254 (May 14, 2021).