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Maryland State Government Maryland Department of the Environment

Mitigation for Nontidal Wetlands, Tidal Wetlands, and Waterways

Announcements

 

MDE's In-Lieu Fee Program

An in-lieu fee (ILF) program is defined in the 2008 Federal Mitigation Rule as being a program involving the restoration, establishment, enhancement, and/or preservation of aquatic resources through funds paid to a governmental or non-profit natural resources management entity to satisfy compensatory mitigation requirements for permits. An in-lieu fee program sells compensatory mitigation credits to permittees whose obligation to provide compensatory mitigation is then transferred to the in-lieu program sponsor. All the funds collected into the in-lieu fee program must be used to implement the mitigation requirements, with only a minimal administrative cost allowed.

MDE has successfully managed an ILF wetland mitigation program, which includes two independent special funds: (1) the Nontidal Wetlands Compensation Fund (Nontidal Fund), which has accepted mitigation payments since 1991; and (2) the Tidal Wetlands Compensation Fund (Tidal Fund), which has accepted mitigation payments since 1996. MDE has completed numerous mitigation projects throughout the State that have replaced lost wetland acreage, functions, and values using the Nontidal Fund and the Tidal Fund.

MDE and the Chesapeake Bay Trust (CBT) are partnering to provide a grant program grant program using the Nontidal Fund for nontidal wetland restoration, creation, and enhancement projects throughout Maryland. Using this grant program, MDE and CBT have recently funded several nontidal wetland projects, which are currently under construction. The continuation of this grant program will allow MDE to complete wetland mitigation sites that will satisfy past and future ILF mitigation requirements.

The US Army Corps of Engineers (Corps) has determined that the ILF Program does not meet the requirements of the Federal Mitigation Rule. For this reason, the Corps will not allow the use of the ILF Program to satisfy federal compensatory mitigation requirements until the ILF Program is revised and approved by the Interagency Review Team (IRT), consisting of representatives from the Corps and other federal and State regulatory and resource agencies. MDE is working to revise the ILF program and state regulations related to nontidal wetland mitigation to be consistent with the Federal Mitigation Rule. MDE submitted the Prospectus (PDF) to the IRT in August 2015 and has received comments back. MDE will address all comments received and submit an ILF Instrument, which will provide greater detail on the ILF Program’s operation, including the process by which mitigation projects will be identified, implemented, and managed. After the ILF Instrument is approved by the IRT, MDE will begin accepting payments for compensatory mitigation projects in accordance with the ILF Instrument and the Federal Mitigation Rule requirements.

 

Mitigation Banks

 

The Federal Mitigation Rule defines a mitigation bank as a site, or suite of sites, where resources (e.g., wetlands, streams, riparian areas) are restored, established, enhanced, and/or preserved for the purpose of providing compensatory mitigation for impacts authorized by permits.  In general, a mitigation bank sells compensatory mitigation credits to permittees whose obligation to provide compensatory mitigation is then transferred to the mitigation bank sponsor.  The operation and use of a mitigation bank are governed by a mitigation banking instrument, which is a legal document reviewed and approved by the Interagency Review Team.
MDE encourages the development of Mitigation Banks in Maryland.  The Interagency Review Team (IRT)
, comprised of representatives from federal, State, and local agencies, meets monthly to discuss mitigation banking, MDE’s ILF Program, and general mitigation policies.  The IRT continues to work to develop standard templates and Standard Operating Procedures to improve the efficiency of the mitigation bank review process and improve the environmental outcomes.   As it is clear that Maryland would benefit from additional guidance on stream mitigation, a stream subgroup also meets on a regular basis to develop procedures and guidance related to stream mitigation.  Please check back for updates on this stream subgroup.
The 2008 Federal Mitigation Rule
[http://www.nab.usace.army.mil/Portals/63/docs/Regulatory/Mitigation/wetlands_mitigation_final_rule_4_10_08.PDF] requires that for a mitigation bank to be approved, it must follow a formal mitigation bank review process.  This process includes the submittal and IRT review/approval of a Draft Prospectus, Prospectus, Draft Instrument, and Final Instrument.  Mitigation bankers interested in presenting potential mitigation banks at the monthly IRT meetings are encouraged to contact Kelly Neff at 410-537-4018.
Information on mitigation banks in Maryland, including all major documents pertaining to the bank (e.g.,
Prospectus and Instrument), description of the bank, status of bank approval, service areas, available credits, and monitoring reports can be found on the US Army Corps of Engineers RIBITS website [https://ribits.usace.army.mil/].

 

Nontidal Wetlands:


• Example Performance Standards and Monitoring Protocol for Nontidal Wetland Mitigation Banks (October 28, 2016) (PDF)

• Typical Nontidal Wetland Mitigation Crediting Ratios by Mitigation Type (PDF)
• Typical Schedule of Credit Availability for Nontidal Wetland Mitigation Banks (PDF)

 

Tidal Wetlands:

• Example Performance Standards and Monitoring Protocol for Tidal Wetland Mitigation Banks (October 28, 2016) (PDF)
• Typical Tidal Wetland Mitigation Crediting Ratios by Mitigation Type (PDF)
• Typical Schedule of Credit Availability for Tidal Wetland Mitigation Banks (PDF)

 

Nontidal Wetlands, Tidal Wetlands and Waterways:

• Interagency Review Team Contact Information (PDF)
• Information for a Complete Mitigation Bank Prospectus (PDF)
• Requirements for a Complete Mitigation Bank Instrument (PDF)
• Example Joint Corps-MDE Mitigation Bank Site Declaration of Restrictive Covenants (October 21, 2016) (PDF)
• US Army Corps of Engineers Baltimore District Mitigation website
[http://www.nab.usace.army.mil/Missions/Regulatory/Mitigation.aspx]
• Mitigation Site Selection Using a Watershed Approach:
o Watershed Resources Registry [www.watershedresourcesregistry.com]
o Prioritizing Areas for Restoration, Preservation, and Mitigation

[http://www.mde.state.md.us/programs/Water/WetlandsandWaterways/AboutWetlands/Pages/Programs/WaterPrograms/Wetlands_Waterways/about_wetlands/restoration_index.aspx]

 

 

Permittee-Responsible Mitigation

 As defined by the Federal Mitigation Rule, permittee-responsible mitigation means an aquatic resource restoration, establishment, enhancement, and/or preservation activity undertaken by the permittee (or person subject to a mitigation requirement, an authorized agent, or contractor) to provide compensatory mitigation for which the permittee retains full responsibility.

Nontidal Wetlands:
• Nontidal Wetland Phase I Mitigation Plan – Required Information
• Nontidal Wetland Phase II Mitigation Plan – Required Information
• Example Performance Standards and Monitoring Protocol for Permittee-Responsible Nontidal Wetland Mitigation Sites (October
28, 2016) (PDF)
• Typical Nontidal Wetland Mitigation Crediting Ratios by Mitigation Type (PDF)

Tidal Wetlands:


• Typical Tidal Wetland Mitigation Crediting Ratios by Mitigation Type (PDF)

Nontidal Wetlands, Tidal Wetlands, and Waterways:
• Example Joint Corps-MDE Mitigation Bank Site Declaration of Restrictive Covenants (PDF)

[http://www.nab.usace.army.mil/Portals/63/docs/Regulatory/Mitigation/Permittee_Resp_Mit_Site_Dec.PDF]
• Maryland Nontidal Wetland Mitigation Guidance

(http://www.mde.state.md.us/programs/Water/WetlandsandWaterways/AboutWetlands/Documents/www.mde.state.md.us/assets/document/wetlandswaterways/MITGUIDEfeb72011.pdf )
• US Army Corps of Engineers Baltimore District Mitigation website

[http://www.nab.usace.army.mil/Missions/Regulatory/Mitigation.aspx]
• Mitigation Site Selection Using a Watershed Approach:
o Watershed Resources Registry [link to www. watershedresourcesregistry.com]
o Prioritizing Areas for Restoration, Preservation, and Mitigation

[http://www.mde.state.md.us/programs/Water/WetlandsandWaterways/AboutWetlands/Pages/Programs/WaterPrograms/Wetlands_Waterways/about_wetlands/restoration_index.aspx]

 

     

    Nontidal Wetland Mitigation Overview


     

     

    What is mitigation?
    Nontidal wetland mitigation is the creation, restoration, or enhancement of nontidal wetlands, to compensate for nontidal wetlands that were or will be lost due to regulated activities or non-exempt agricultural activities. The State definition of wetlands corresponds to the Federal definition of compensatory mitigation.

    Nontidal wetland creation projects establish nontidal wetlands on upland sites. These projects usually involve lowering the elevations of uplands by grading the soil for the purpose of increasing the frequency of soil saturation, flooding, and ponding.

    Nontidal wetland restoration projects reestablish nontidal wetlands on sites where they were formerly located. For example, the removal of drainage structures from agricultural fields can result in nontidal wetland restoration.

    Nontidal wetland enhancement projects improve the functions of existing nontidal wetlands. Planting wetlands that are farmed or dominated by lawn grass is the most common type of enhancement project. Stream restoration projects that reconnect the floodplain can enhance existing nontidal wetlands. Enhancement projects do not, however, increase the acreage of nontidal wetlands.

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    When is nontidal wetland mitigation Required?

    Mitigation is required to compensate for authorized activities which will cause unavoidable losses of nontidal wetlands.

    What activities require nontidal wetland mitigation?

    • Removal, excavation, or dredging of soil, sand, gravel, minerals, organic matter, or materials of any kind.
    • Changing existing drainage characteristics, sedimentation patterns, flow patterns, or flood retention characteristics.
    • Disturbance of the water level or water table by drainage, impoundment, or other means.
    • Dumping, discharging of material, or filling with material, including the driving of piles and placing of obstructions.
    • Grading or removal of plant life that would alter the character of a nontidal wetland.
    • Agricultural activities in undisturbed wetlands.


    What activities do not require mitigation?

    • Forestry activities
    • Traditional agricultural activities such as plowing and cultivating, which do not drain, dredge, fill, or otherwise convert undisturbed nontidal wetlands.
    • Development activities with minimal impacts to nontidal wetlands, and which are exempt or qualify for a Letter of Authorization, except Letters of Authorization for activities in the Chesapeake Bay Critical Area.
    • Mitigation is not required for temporary impacts to wetlands or impacts to the wetland buffer or expanded buffer.


     

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    What are the acreage requirements for nontidal wetland mitigation?
    Acreage replacement ratios are used to determine the amount of mitigation required. Before any nontidal wetlands have been impacted by a project, the amount of each type of wetland to be lost (emergent, scrub-shrub, or forested) must be determined.  Acreage replacement ratios are expressed as a relationship between two numbers. The first number specifies the acreage to be mitigated and the second number specifies the acreage of nontidal wetlands impacted.  The acreage replacement ratios are:

    WETLAND TYPE REPLACEMENT RATIO FOR PERMANENT IMPACTS
    Farmed 1:1
    Emergent 1:1
    Scrub-shrub 2:1
    Forested 2:1
    Scrub-shrub to emergent conversion 1:1
    Forested to emergent conversion 1:1
    Forested to scrub-shrub 1:1
    Emergent (of special State concern) 2:1
    Scrub-shrub (of special State concern) 3:1
    Forested, (of special state concern) 3:1



     

     

     

         

         


        What are the Procedures for Mitigation?

        Development Activities | Agricultural Activities

         

        Nontidal Wetland Mitigation for Development Activities

         

        What is the procedure for mitigating for the loss of nontidal wetlands due to development activities?

        If mitigation will be required for a development activity, a Phase I (conceptual) Mitigation Plan must be developed. The following steps should be taken:

        • Determine the acreage of each type of wetland (emergent, scrub-shrub, or forested) to be impacted, based on a delineation consistent with the Regional Supplements to the Corps of Engineers (Corps) Wetland Delineation Manual [http://www.mde.state.md.us/programs/Water/WetlandsandWaterways/DocumentsandInformation/Pages/Programs/WaterPrograms/Wetlands_Waterways/documents_information/cpsupplement.aspx].
        • Determine wetland mitigation type being proposed: 1) purchase of available credits from an approved mitigation bank having a service area overlapping with the area of impacts, 2) payment into the MDE ILF Program [link] (for mitigation not required by the Corps), or 3) completing a permittee-responsible mitigation project
        • If proposing a permittee-responsible mitigation project, locate appropriate mitigation site(s).
        • Develop and submit a Phase I Mitigation Plan. Do not proceed with a Phase II (design) Mitigation Plan until the Phase I has been approved by the Department. If requesting to purchase credit from a mitigation bank or pay into the ILF Program, this should be proposed as the Phase I Mitigation Plan. If proposing a permittee-responsible mitigation project, the Phase I Mitigation Plan should include all elements in the Phase I Mitigation Plan checklist [PDF].
        • For permittee-responsible mitigation, demonstrate that you have the right to use the site for mitigation.
        • MDE will review the Phase I Mitigation Plan and provide feedback, but cannot officially approve the Phase I Mitigation Plan until after completion of the Public Notice period (for projects where Public Notice is required). The Department will render a decision on the acceptability of the Phase I as part of the final permit decision. The Phase I Mitigation Plan must be approved by the Department prior to issuance of authorization. If payment into a mitigation bank is approved by the Department, a copy of the signed contract showing the purchase of required mitigation credits must be received prior to issuance of authorization. If payment into the ILF Program is approved by the Department, payment must be received prior to issuance of authorization.
        • If necessary, obtain a mitigation surety bond or other Department-approved financial assurance prior to issuance of authorization. The financial assurance will be released after the Department determines that the mitigation project has been successfully completed and is developing into an acceptable wetland system.
        • The applicant should submit the Phase II Mitigation Plan to MDE as part of the permit application, to the maximum extent practicable. The Corps may require that projects requiring an Individual Permit have an approved Phase II Mitigation Plan prior to issuance of authorization. For all other projects, the Phase II Mitigation Plan must be approved prior to commencing authorized impacts. The applicant should send all the information to MDE at the same time as the Corps, so MDE is able to comment on the Phase II plan in conjunction with the Corps.

        If the project is not exempt from mitigation requirements, and the permittee is proposing to conduct permittee-responsible mitigation, the following mitigation steps are required as permit conditions:

        • After the Phase I Mitigation Plan has been approved, develop a Phase II Mitigation Plan, being sure to include all elements of the Phase II Mitigation Plan checklist [PDF].
        • Submit Phase II of the Mitigation Plan to the Department within 3 months of receiving a favorable permit decision, unless otherwise determined by the Department. The Phase II Mitigation Plan must be approved by the Department prior to commencing authorized impacts. The Department will render a decision within 45 days of receipt of a complete Phase II mitigation plan. If necessary, revise the mitigation plan based on comments by the Department.
        • After the Phase II Mitigation Plan is approved by the Department, create, restore, and/or enhance nontidal wetlands at the mitigation site(s). The mitigation project should be successfully constructed in advance or concurrently with the authorized impacts. Notify the Department upon the start of grading and the completion of planting of the mitigation project. Submit an "as-built" site design plan to the Department within 120 days of the completion (including grading, planting, and/or vegetative stabilization) of the mitigation project.
        • Demonstrate that the site has been protected in perpetuity through a Declaration of Restrictive Covenants [PDF] or other site protection mechanism acceptable to the Department.
        • Monitor the mitigation project for the period of time specified in the permit condition to ensure the site is meeting Performance Standards [PDF]. Submit monitoring reports to the Department. Conduct maintenance and remediation activities, as appropriate to meet Performance Standards.
        • The original permittee or authorized person, as stated in the authorization, must notify the Department if the authorization is transferred to another party. If the mitigation obligation has not yet been completed to the Department’s satisfaction (through payment into an approved mitigation bank, payment into the ILF Program, or termination of mitigation monitoring by the Department), and the permittee or authorized person listed on the authorization transfers responsibility for the mitigation obligation to another party, the permittee or authorized person listed on the authorization must notify the Department.

         

        Nontidal Wetland Mitigation for Agricultural Activities

         

        What is the procedure for mitigating for the loss of nontidal wetlands due to agricultural activities?

         

        A person conducting an agricultural activity within nontidal wetlands is exempt from the requirement to obtain a nontidal wetlands permit according to the Code of Maryland Regulations (COMAR).  Agricultural exemptions are further described in the MDE factsheet entitled Nontidal Wetland Regulations and Agriculture [http://www.mde.state.md.us/programs/Water/WetlandsandWaterways/DocumentsandInformation/Documents/www.mde.state.md.us/assets/document/WetlandsWaterways/agriculture.pdf].

        While these projects do not require a permit, the farmer may be required to implement best management practices (BMPs) to protect nontidal wetlands and provide mitigation for any loss of nontidal wetlands through a soil conservation and water quality plan submitted to, and approved by, a Soil Conservation District (SCD).  BMPs are conservation measures that control soil loss, reduce water quality degradation, and/or minimize adverse impacts to water quality and flow, and the chemical, physical, and biological characteristics of nontidal wetlands.  Examples of BMPs include filter strips, field borders, conservation cropping sequences, nutrient and pesticide management, and irrigation water management.
        Mitigation is required if nontidal wetland impacts associated with these projects meet any of the following criteria: 
        • Any amount of impacts to nontidal wetlands within the Critical Area
        • Any amount of impacts to nontidal wetlands having significant plant or wildlife value, as defined in COMAR 26.23.01.01. 

        These include wetlands: of unusual or unique community types; with water discharge that maintains minimum stream base flow important for maintaining plant and wildlife species; with threatened or endangered species, or species in need of conservation; adjacent to Class III or Class IV waters; of Special State Concern; supporting vernal pools; and areas that are regularly or periodically influenced by tidal waters.
        • Impacts to 5,000 square feet or more of connected nontidal wetlands
        • Impacts to 1 acre or more of isolated nontidal wetlands
        Before conducting agricultural activities in nontidal wetlands, a farmer must:
        • Contact the SCD to identify or verify the extent of nontidal wetlands, the presence or absence of significant plant or
        wildlife value, and the status of the wetlands as connected or isolated. A SCD Certification/MDE Concurrence Form must be approved for the project.

        • Submit a soil conservation and water quality plan with BMPs to the SCD for approval before beginning the activity.

        • Determine the wetland mitigation type being proposed: 1) completing a permittee-responsible mitigation [link] project, 2) purchase of available credits from an approved mitigation bank having a service area overlapping with the area of impacts, or 3) payment into the MDE ILF Program.

        • Submit the mitigation components of the soil conservation and water quality plan to MDE, Wetlands and Waterways Program, Mitigation Section, 1800 Washington Boulevard, Suite 430, Baltimore, Maryland 21230. For permittee-responsible mitigation proposals the mitigation component should include the Phase I and Phase II Wetland Mitigation Plans, consistent with requirements in the documents entitled Phase I Mitigation Plan – Required Information [link to Phase I] and Phase II Mitigation Plan – Required Information [link to Phase II], and COMAR 26.23.04.03 through 26.23.04.07.  The Phase I Wetland Mitigation Plan should be submitted to the Mitigation Section for approval before preparing and submitting the detailed Phase II Wetland Mitigation Plan. Within 60 days from receipt, MDE shall determine whether or not the mitigation component is consistent with regulations.  The mitigation component must be approved by the Mitigation Section, as documented by a MDE Phase II Wetland Mitigation Plan Approval Letter, prior to commencing impacts. 

        • Receive SCD approval of a soil conservation and water quality plan that is consistent with regulations. 

        • Unless the mitigation is completed in advance of the impacts, a bond or other financial assurance for the mitigation project will be required within sixty days after the soil conservation and water quality plan is approved.

        • Mitigation must be completed according to the Phase II Wetland Mitigation Plan Approval Letter within three years of the impacts.  For five years from the completion of the mitigation project, the farmer shall submit annual monitoring reports to show how the mitigation is meeting the Performance Standards, unless otherwise determined in the Phase II Wetland Mitigation Plan Approval Letter.
         

         

        Tidal Wetland Mitigation Overview

        Tidal wetland mitigation is the creation, restoration, or enhancement of tidal wetlands, to compensate for tidal wetlands that were or will be lost due to regulated activities. Mitigation is required to compensate for authorized activities which will cause unavoidable losses of tidal wetlands.  If an applicant demonstrates that alteration of tidal wetlands cannot be avoided, the Department shall: 1) recommend that the Board of Public Works require mitigation as a condition of a State tidal wetlands license; or 2) require mitigation as a condition of a private tidal wetlands permit.

        Tidal mitigation shall be considered in the following order of preference:
        (a) Restoration;
        (b) In-kind creation;
        (c) Out-of-kind creation;
        (d) Enhancement of existing tidal wetlands;
        (e) Monetary compensation to the Tidal Wetlands Compensation Fund*

        * The US Army Corps of Engineers (Corps) has determined that the Tidal Wetlands Compensation Fund [ILF Program website] does not meet the requirements of the 2008 Federal Mitigation Rule.  For this reason, the Corps will not allow the use of this fund to satisfy federal compensatory mitigation requirements. 

         

        What is the procedure mitigating for the loss of tidal wetlands due to regulated activities?

        A mitigation concept plan should be provided as part of the Joint Federal/State Application. A detailed mitigation plan should be submitted to and approved by the Department prior to authorization.  A licensee or permittee shall implement the mitigation plan prior to or concurrent with the construction of the impact project, unless otherwise directed by the Department. A bond or other type of financial assurance shall be recommended as a condition of the license or required as a permit condition.  The licensee or permittee shall submit annual monitoring reports for five years from the completion of construction of the mitigation project, to demonstrate that the mitigation project is meeting performance standards, unless otherwise directed by the Department.

         

        What are the acreage requirements for tidal mitigation?

        Acreage replacement ratios are used to determine the amount of mitigation required. Before any tidal wetlands have been impacted by a project, the amount of each type of wetland to be lost (open water, emergent, scrub-shrub, or forested) must be determined. Acreage replacement ratios are expressed as a relationship between two numbers. The first number specifies the acreage to be mitigated and the second number specifies the acreage of tidal wetlands impacted. The acreage replacement ratios are as follows:


         

         

        WETLAND TYPE REPLACEMENT RATIO FOR PERMANENT IMPACTS**
        Open water tidal wetlands 1:1
        Emergent tidal wetlands 2:1
        Scrub-shrub tidal wetlands 2:1
        Forested tidal wetlands 2:1
        Tidal wetlands habitat for rare, threatened, or endangered species, or species in need of conservation 3:1



         

        **Out-of-kind creation and enhancement ratios are increased by a factor of 2.

         

        Effectiveness of Maryland Compensatory Mitigation Program


        The Maryland Department of the Environment's (MDE) Wetlands and Waterways Program has included a nontidal wetland mitigation section since the program’s inception in 1991. Maryland's Nontidal Wetlands Act requires a “no net loss” of wetland acreage and function. In order to achieve the goal of “no net loss,” compensatory mitigation is required when wetland impacts are unavoidable. The mitigation section is tasked with ensuring that the compensatory mitigation is successfully completed.


        In December 2007, MDE completed a report designed to determine the overall effectiveness of MDE’s nontidal wetland mitigation
        section by critically analyzing all of the various aspects and components involved with mitigation projects, and then to provide recommendations on how to correct any deficiencies found. The ultimate goal is to generate new, up-to-date guidance that will allow the mitigation section to be more efficient and successful.

        Title Page
        Table of Contents
        Executive Summary
        Mitigation Report - Final
         
        As part of the effort to evaluate the mitigation program, MDE developed a rapid mitigation site scoring method
        [http://www.mde.state.md.us/programs/Water/WetlandsandWaterways/AboutWetlands/Pages/Programs/WaterPrograms/Wetlands_Waterways/about_wetlands/mitigation_scoring.aspx].

         

         

        For more information, please contact Kelly Neff at 410-537-4018 or kelly.neff@maryland.gov.

         


           

           

           


           

           


             

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