LAWRENCE J. HOGAN, JR., Governor Ch. 412
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Chapter 412
(House Bill 1201)
AN ACT concerning
Water Pollution – Civil Penalty Surcharge – Oyster Repletion Fund
Supplemental Environmental Projects
FOR the purpose of establishing a surcharge on civil penalties imposed for certain
violations that result in the discharge of pollutants into the Chesapeake Bay or its
tributaries; establishing the Oyster Repletion Fund as a special, nonlapsing fund in
the Department of Natural Resources; requiring the surcharges to be deposited to
the Fund and used to finance the repletion of natural oyster bars in waters impacted
by water pollution violations requiring the Department of the Environment to
include oyster repletion projects in a certain database; requiring the Department to
prioritize a supplemental environmental project involving certain oyster repletion
projects for a party who is in violation of a certain effluent limitation or unpermitted
discharge; and generally relating to water pollution and oyster repletion.
BY repealing and reenacting, with amendments,
Article – Environment
Section 9–342
Annotated Code of Maryland
(2014 Replacement Volume and 2021 Supplement)
BY adding to
Article – Natural Resources
Section 4–209.1
Annotated Code of Maryland
(2018 Replacement Volume and 2021 Supplement)
BY adding to
Article – Environment
Section 1–306(b)(3)
Annotated Code of Maryland
(2013 Replacement Volume and 2021 Supplement)
(As enacted by Chapter __ (S.B. 90/H.B. 595) of the Acts of the General
Assembly of 2022)
SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND,
That the Laws of Maryland read as follows:
Article – Environment
1–306.
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(b) (3) THE DEPARTMENT SHALL INCL UDE OYSTER REPLETION
PROJECTS IN THE DATA BASE.
9–342.
(a) (1) In addition to being subject to an injunctive action under this subtitle,
a person who violates any provision of this subtitle or of any rule, regulation, order, or
permit adopted or issued under this subtitle is liable to a civil penalty not exceeding
$10,000, to be collected in a civil action brought by the Department.
(2) Each day a violation occurs is a separate violation under this
subsection.
(b) (1) In addition to any other remedies available at law or in equity and after
an opportunity for a hearing which may be waived in writing by the person accused of a
violation, the Department may impose a penalty for violation of any provision of this
subtitle or any rule, regulation, order, or permit adopted or issued under this subtitle.
(2) The penalty imposed on a person under this subsection shall be:
(i) Up to $10,000 for each violation, but not exceeding $100,000
total; and
(ii) Assessed with consideration given to:
1. The willfulness of the violation, the extent to which the
existence of the violation was known to but uncorrected by the violator, and the extent to
which the violator exercised reasonable care;
2. Any actual harm to the environment or to human health,
including injury to or impairment of the use of the waters of this State or the natural
resources of this State;
3. The cost of cleanup and the cost of restoration of natural
resources;
4. The nature and degree of injury to or interference with
general welfare, health, and property;
5. The extent to which the location of the violation, including
location near waters of this State or areas of human population, creates the potential for
harm to the environment or to human health or safety;
6. The available technology and economic reasonableness of
controlling, reducing, or eliminating the violation;
LAWRENCE J. HOGAN, JR., Governor Ch. 412
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7. The degree of hazard posed by the particular pollutant or
pollutants involved; and
8. The extent to which the current violation is part of a
recurrent pattern of the same or similar type of violation committed by the violator.
(3) Each day a violation occurs is a separate violation under this
subsection.
(4) Any penalty imposed under this subsection is payable to this State and
collectible in any manner provided at law for the collection of debts.
(5) If any person who is liable to pay a penalty imposed under this
subsection fails to pay it after demand, the amount, together with interest and any costs
that may accrue, shall be:
(i) A lien in favor of this State on any property, real or personal, of
the person; and
(ii) Recorded in the office of the clerk of court for the county in which
the property is located.
(6) Any penalty collected under this subsection shall be placed in a special
fund to be used for monitoring and surveillance by the Department to assure and maintain
an adequate record of any violations, including discharge of waste material and other
pollutants into the waters of this State or into the environment.
(C) (1) IN ADDITION TO A CIVI L PENALTY IMPOSED UN DER SUBSECTION
(A) OR (B) OF THIS SECTION, IF A VIOLATION OF AN Y PROVISION OF THIS SUBTITLE
OR ANY RULE, REGULATION , ORDER, OR PERMIT ADOPTED OR ISSUED UNDER THIS
SUBTITLE, RESULTS IN THE DISCH ARGE OF POLLUTANTS T O THE CHESAPEAKE BAY
OR ITS TRIBUTARIES , THE DEPARTMENT SHALL IMPO SE A SURCHARGE ON TH E
PERSON RESPONSIBLE F OR THE VIOLATION .
(2) THE SURCHARGE SHALL B E EQUAL TO 25% OF THE TOTAL CIVIL
PENALTY IMPOSED UNDE R SUBSECTION (A) OR (B) OF THIS SECTION.
(3) ANY SURCHARGE COLLECT ED UNDER THIS SUBSEC TION SHALL
BE DEPOSITED INTO TH E OYSTER REPLETION FUND ESTABLISHED UNDE R § 4–209.1
OF THE NATURAL RESOURCES ARTICLE.
Article – Natural Resources
4–209.1.
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(A) (1) IN THIS SECTION THE F OLLOWING WORDS HAVE THE MEANINGS
INDICATED.
(2) “COUNTY OYSTER COMMITTEE” MEANS A COMMITTEE
ESTABLISHED UNDER § 4–1106(B) OF THIS TITLE.
(3) “FUND” MEANS THE OYSTER REPLETION FUND.
(B) THERE IS AN OYSTER REPLETION FUND IN THE DEPARTMENT .
(C) THE PURPOSE OF THE FUND IS TO FINANCE TH E REPLETION OF
NATURAL OYSTER BARS IN WATERS IMPAC TED BY WATER POLLUTI ON VIOLATIONS.
(D) THE DEPARTMENT SHALL ADMI NISTER THE FUND.
(E) (1) THE FUND IS A SPECIAL , NONLAPSING FUND THAT IS NOT
SUBJECT TO § 7–302 OF THE STATE FINANCE AND PROCUREMENT ARTICLE.
(2) THE STATE TREASURER SHALL HOLD THE FUND SEPARATELY
AND THE COMPTROLLER SHALL ACC OUNT FOR THE FUND.
(F) THE FUND CONSISTS OF :
(1) SURCHARGES ON CIVIL P ENALTIES COLLECTED U NDER §
9–342(C) OF THE ENVIRONMENT ARTICLE;
(2) MONEY APPROPRIATED IN THE STATE BUDGET TO THE FUND;
AND
(3) ANY OTHER MONEY FROM ANY OTHER SOURCE ACC EPTED FOR
THE BENEFIT OF THE FUND.
(G) (1) THE FUND MAY BE USED ONLY FOR OYSTER REPLETION
PROJECTS CONDUCTED I N ACCORDANCE WITH TH IS SUBSECTION.
(2) TO THE EXTENT PRACTIC ABLE, A SURCHARGE COLLECTED
UNDER § 9–342(C) OF THE ENVIRONMENT ARTICLE SHALL BE USED TO FUND
OYSTER REPLETION PRO JECTS IN THE COUNTY WHERE THE UNDERLYING WATER
POLLUTION VIOLATION OCCURRED.
(3) THE DEPARTMENT SHALL WORK WITH THE COUNTY OYST ER
COMMITTEE FOR THE CO UNTY WHERE THE UNDERLYING WATER POLLUTION
VIOLATION OCCURRED T O IDENTIFY:
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(I) NATURAL OYSTER BARS W ITHIN THE COUNTY FOR
REPLETION; OR
(II) IF NO NATURAL OYSTER BAR WITHIN THE COUNT Y IS
SUITABLE FOR REPLETI ON, NATURAL OYSTER BARS WITHIN AN ADJACENT C OUNTY
FOR REPLETION .
(4) REPLETION PROJECTS CO NDUCTED UNDER THIS S UBSECTION
SHALL BE IN THE FORM OF SPAT–ON–SHELL.
(5) (I) THE DEPARTMENT MAY CONTRA CT WITH A NONPROFIT
ORGANIZATION THAT SP ECIALIZES IN OYSTER RECOVERY TO CARRY OU T OYSTER
REPLETION PROJECTS U NDER THIS SUBSECTION .
(II) THE FUND MAY BE USED TO C OVER REASONABLE
ADMINISTRATIVE EXPEN SES INCURRED BY A NO NPROFIT ORGANIZATION IN
CARRYING OUT OYSTER REPLETION PROJECTS U NDER THIS SUBSECTION .
(H) (1) THE STATE TREASURER SHALL INVEST THE MONEY OF THE FUND
IN THE SAME MANNER A S OTHER STATE MONEY MAY BE IN VESTED.
(2) ANY INTEREST EARNINGS OF THE FUND SHALL BE CREDITE D TO
THE GENERAL FUND OF THE STATE.
(I) EXPENDITURES FROM THE FUND MAY BE MADE ONLY IN ACCORDANCE
WITH THE STATE BUDGET.
(J) MONEY EXPENDED FROM T HE FUND FOR OYSTER REPLE TION
PROJECTS IS SUPPLEME NTAL TO AND IS NOT I NTENDED TO TAKE THE PLACE OF
FUNDING THAT OTHERWI SE WOULD BE APPROPRI ATED FOR OYSTER REPL ETION
PROJECTS.
SECTION 2. AND BE IT FURTHER ENACTED, That:
(a) Subject to subsection (b) of this section, the Department of the Environment
shall prioritize a supplemental environmental project involving oyster repletion in natural
oyster bars in the county where the underlying water pollution violation occurred with
input from the county oyster committee for a party who is in violation of an effluent
limitation or unpermitted discharge in the proximity of an oyster population.
(b) If there are no suitable natural oyster bars for repletion in the county where
the violation occurred, the natural oyster bar repletion project shall be carried out in an
adjacent county.
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SECTION 3. AND BE IT FURTHER ENACTED, That Section 1 of this Act shall take
effect October 1, 2022, contingent on the taking effect of Chapter ____ (S.B. 90/H.B. 595) of
the Acts of the General Assembly of 2022, and if Chapter ____ (S.B. 90/H.B. 595) does not
become effective, Section 1 of this Act, with no further action required by the General
Assembly, shall be null and void.
SECTION 2. 4. AND BE IT FURTHER ENACTED, That , except as provided in
Section 3 of this Act, this Act shall take effect October 1, 2022.
Approved by the Governor, May 16, 2022.