1. Maryland Wetland Laws and
Compliance
Presentation for Halfmoon Education, Inc.
Jessup, Maryland
November 17, 2016
Baltimore, MD 21231
1.410.491.2808 | AndrewTDer@comcast.net
Andrew T. Der & Associates, LLC
Environmental Consulting
2. Getting a U. S. Army Corps of
Engineers/Maryland Department of the
Environment Tidal/Nontidal Wetland
and Waterways Permit
– or –
(almost) Everything You Wanted to
Know About a Joint Federal/State
Permit Application (JPA) But Were
Afraid to Ask
3. Review of Regulated Waters
• Waters of the U. S.
• Definition includes tidal
navigable water, nontidal
navigable water and adjacent
headwaters - and wetlands
adjacent to such waters – but
how far up does it go? This is
the key.
• Determines extent of Sec 401
(Water Quality Certification),
402 (NPDES) and 404 (Dredge
and Fill) “permitting” and other
components of the Clean Water
Act.
4. Definition of Wetlands
"Wetlands are areas that
are inundated or
saturated by surface or
ground water at a
frequency and duration
sufficient to support, and
that under normal
circumstances do
support, a prevalence of
vegetation typically
adapted for life in
saturated soil conditions.
Wetlands generally
include swamps,
marshes, bogs, and
similar areas.”
5. Definition of Wetlands
• Determined on the
ground by 1987
USACE Manual and
Regional Supplement
• 3 Parameter
Approach of
hydrology, hydric
soils, and
predominance of
hydrophytic vegetation
Wetlands are waters but not all waters are
wetlands!
6. Hydrology Parameter
Is there water for
14 consecutive
days or more in a
year?
Determined from
data or secondary
visual indicators
7. Hydric Soils Parameter
Are there hydric soils
present?
Hydric soils are saturated
sufficiently to have
anaerobic conditions
Visual indicators
(Munsell chart)
Hydric Soils Lists
Field Indicators of
Hydric Soils in the
United States
8. Hydrophytic Vegetation Parameter
Is there a
predominance
of wet tolerant plant
species present?
Species classified in
National Wetland Plant
lists, Supplements and
text books
9. Three Common Wetland Types
• Forested Wetland - Includes all tidal and nontidal wetlands dominated
by woody vegetation greater than or equal to 5 meters in height, and all
such wetlands that occur in tidal areas in which salinity due to ocean-
derived salts is below 0.5 percent. Total vegetation coverage is greater
than 20 percent.
• Emergent Wetland (Persistent) - Includes all tidal and nontidal wetlands
dominated by persistent emergent vascular plants, emergent mosses or
lichens, and all such wetlands that occur in tidal areas in which salinity
due to ocean-derived salts is below 0.5 percent. Plants generally remain
standing until the next growing season. Total vegetation cover is greater
than 80 percent.
• Scrub-Shrub Wetland - Includes all tidal and nontidal wetlands
dominated by woody vegetation less than 5 meters in height, and all such
wetlands that occur in tidal areas in which salinity due to ocean-derived
salts is below 0.5 percent. Total vegetation coverage is greater than 20
percent. The species present could be true shrubs, young trees and
shrubs, or trees that are small or stunted due to environmental conditions
10. Three Common Wetland Types
• Forested Wetland
• Emergent
Wetland
• Scrub-Shrub
Wetland
11. Stream Definitions?
• Up-stream limits defined
by field conditions and
Supreme Court case
guidance
• Rulemaking to clarify
“waters of the U.S.”
debated
• Primary federal stream
rule - field stream
indicator is defined by
Ordinary High Water
Mark (OHWM) on bank
12. Stream and Wetland Limits
• Application of written
criteria subjective in
the field
• Limits not always clear
• Bottom line - limits of
waters including
wetlands often
determined via
concurrence and
collaboration process
with USACE/MDE -
and consultants
14. Important Court Rulings
SWANCC (Solid Waste Agency of Northern Cook
County v. U.S. Army Corps of Engineers, 2001)
• USACE does not have authority over wetlands that are not
surface water tributaries to other wetlands or waters of the
U.S., based solely on the “Migratory Bird Rule” - unless a clear
connection to Interstate Commerce can be demonstrated
• What it means - Isolated waters not usually regulated by
Corps but may be by MDE
15. Important Court Rulings
Rapanos v. United States, 2006
• Limits USACE jurisdiction to:
– Traditional Navigable Waters (TNWs) and their associated
wetlands
– Relatively permanently flowing waters (RPWs) to TNWs and
their adjacent wetlands
– Non RPWs tributaries to TNWs and their associated wetlands
which possess a significant nexus to the TNW into which it
eventually flows
• What it means – ephemeral ditches not usually regulated by Corps
16. What is Not (or should not be)
Regulated by the Corps?
• Floodplain (but is a state
water), uplands, trees
• Swales and upland
ditches that drain upland
(many ephemeral
channels)
• Isolated waters and
wetlands (Rapanos did
not change SWANCC)
• Non-RPWs and adjacent
wetlands, if no significant
nexus to TNW exists
17. Corps and MDE Joint
Permitting Criteria
U. S. Army Corps of Engineers – most of time separate Corps
permit not needed when within the MDSPGP-5 (know it, love it, feed it,
nurture it)
http://www.nab.usace.army.mil/Missions/Regulatory/Public-Notices/Public-Notice-
View/Article/644094/spn16-05-maryland-state-programmatic-general-permit-5
• CWA Section 10 – and - 404 dredge and fill permit
Corps Issued MDSPGP to MDE
• Regulates waters of the U. S. only – not isolated waters, some ditches,
buffers, or floodplain
• Try to fit waters of U. S. impacts to streamlined MDSPGP (thresholds
depending on activity and can be 5,000 sf, 10,000 ft, 200 lf, 0.5 acre, 1.0 acres,
etc.) and MDE Letter of Authorization (LOA - 5000 sf) categories – no NWPs in
MD
• Otherwise Individual Corps permit lengthy requiring additional purpose and
need, alternatives analysis, and federal public notice and interagency comment
18. Corps and MDE Joint
Permitting Criteria
Maryland Department of the Environment Wetlands and
Waterways Program - combines numerous separate state permitting
regulations into one Wetlands and Waterways Permit with attached Corps
MDSPGP conditions
• Nontidal Wetland and Waterways Permit for waters of the U. S. and: 100 yr
FP, isolated waters, 25’ nontidal wetland buffer (by policy can include Tier II
Waters Criteria and NTWSSC both of which have own100’ buffer and special
NTW E/S BMP Conditions)
• Tidal Waters and Wetlands License and Permit (no regulated floodplain or
buffer – but CBCA has 100’)
• Coastal Zone Management Act
• Section 401 Water Quality Certification – can impose additional SWM or
BMPs but less common now
20. References
• Definition of “Waters of the U.S.” 33 CFR 328
– http://www.gpo.gov/fdsys/pkg/CFR-2011-title33-vol3/pdf/CFR-2011-title33-vol3-part328.pdf
• Definition of wetlands
– http://water.epa.gov/lawsregs/guidance/wetlands/definitions.cfm
• USACE. 1987. Delineation Manual
– http://el.erdc.usace.army.mil/elpubs/pdf/wlman87.pdf
• Regional Supplements
– http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits/reg_supp.aspx
• Field Indicators of Hydric Soils
– http://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb1046970.pdf
• National Hydric Soils List
– http://www.nrcs.usda.gov/wps/PA_NRCSConsumption/download?cid=stelprdb1248596&ext=xlsx
• National Wetland Plant List
– http://rsgisias.crrel.usace.army.mil/nwpl_static/data/docs/lists_2014/National/National_2014v1.pdf
21. What is a Regulated Impact?
• Impacts are discharges and can be
out of a pipe or placement of material
and grading
• Not all impacts are created equal
Corps only regulates placement of
material - and excavation if
sidecasting or dredge spoil disposal
MDE additionally regulates
vegetative clearing and excavation
• Individual Permits, General Permits,
MD Letters of Authorization, MD
Individual Permits, MD Tidal License
• This process frequently affects and
interfaces with NRI/FSD, CBCA,
NPDES, and state/local SWM – but
what are these and how?
22. What is a Project?
• Independent Utility
– Defines a single and complete project.
– “A project is considered to have independent utility if it
would be constructed absent the construction of other
projects in the project area.”
• Difficult to determine for linear projects
23. Agency Coordination
• U.S. Environmental Protection Agency (USEPA)
• U.S. Fish and Wildlife Service (USFWS)
• National Marine Fisheries Service (NMFS)
• Applicable State Resource agencies (MHT, DNR Wildlife
and Heritage, etc)
• U.S. Coast Guard (USCG) in tidal navigable waters
24. Jurisdictional Determinations
• What are they?
• Do I need one?
• Optional but helpful
• Confirms, on an approved plan, limits of jurisdictional
waters including wetlands
• Does not depict or reveal proposed project or
construction activities – existing conditions only
• “Binding” for five years unless re-delineated
• Goes with property
• So why not get one for every project?
25. Pre-application Coordination
• Optional but essential
for most projects
• Reveals environmental
constraints and issues
not always evident in
desktop and database
studies
• Solicits formal
comments regarding
what is avoidable,
practicable, mitigation
requirements, sensitive
species or habitat
concerns, historical or
justice factors
26. Pre-application Coordination
• Can be combined with field verifications or separate in-
office meeting
• Addresses matters of property rights and access issues
affecting “co-applicant” and “permittee” status
• Addresses maximum use of MDSPGP
27. Mitigation
Customary criteria
• Replace forested and scrubshrub wetland 2:1
• Replace emergent wetland 1:1
• Replace stream impact – usually – by in-kind linear feet
• Can be out-of-kind in special situations, i.e., 1:1 wetland and
stream restoration or retrofit
• Five year (usually) performance monitoring requirement
Current mitigation guidance allows for more out-of-kind
watershed approaches based on function and value losses
over area of impact
28. Joint Permit Application (JPA)
• What is a Complete Application? This is key.
• Purpose and Need
• Alternatives Analysis
• Plans depicting limits of waters including wetlands
field delineated and surveyed
• Project plans depicting limits of disturbance including
all temporary and permanent activity including
construction access in square feet overlaid onto
waters limits
• When to “over-estimate”
29. Application Review
• Purpose and Need
• Alternatives site analysis - or - alternative alignment analysis
when linear
• Identify practicable alternative with least adverse impact
• In addition to water quality and habitat, considerations
include:
Public Need, Economic, Developmental, Recreational,
Scenic/Aesthetic, Marine Commerce, Navigation, Loss
of life or property, flooding hazard, historic, cultural
30. Application Review
• On-site avoidance and minimization
• Address Agency comments (includes commenting
agencies)
• Public Notice (PN) – MDE or Corps?
• Address PN comments if any
31. Coordination with Other State
and Local Water Resource
Regulatory Criteria and
Approval Processes
-or –
just when you thought you were
done
32. What is CWA Section 401 WQC?
Part of Wetland and
Waterway Permit and
concurrent with 404
jurisdiction, applies only
to waters of the U.S.
impacts and not
groundwater and not
isolated wetlands or
many ephemeral
channels
33. Water Quality Standards
• Maintain designated uses (e.g. recreation, aquatic habitat,
drinking water)
• Can be numeric and narrative and may be basis for sensitive
waters requirements
• Can impose a construction time-of-year restriction in permit
• Numeric - DO, Temp, pH, Turbidity, bacteria, toxics
• Narrative – Protection of aquatic
life...fishable…swimmable…includes EPA
• Antidegradation policy from EPA:
“…To accomplish the objective of maintaining existing water
quality…Nonpoint sources shall achieve all cost effective and
reasonable best management practices for nonpoint source
control…”
34. But Wait – There’s More
• MD Chesapeake Bay Critical Area Law
Administered directly for state and federal, but through local zoning and
subdivision ordinances for overlay 1,000 feet from shoreline (MHW)
and 100’ buffers from waters including wetlands – (and a 10% SWM
rule in Intensely Developed Areas)
• MD State Forest Conservation Law
Administered directly for state and federal by MD DNR, but delegated
to localities for local and private lands. Requires NRI or FSD which is
the mechanism for 100’ or more buffers from waters. Could serve as
basis for JPA plans as well as first SWM concept under new
regulations
• Federal and State projects frequently have own programmatic
agreements
35. And Yet, Still More
Stormwater Management - programs moving to integrating
ecological and resource with engineering criteria
• NPDES Phase I and II
U. S. EPA delegated to States by GP – regulates new construction
AND
existing older stormwater sources – only permitting means to retrofit.
New construction = Permitted by GP under Notice of Intent (NOI)
Retrofit of old existing discharges = MS4
• DoD and federal facility SWM mandates
• State/local Stormwater Management Regulations – new construction
• State/local Erosion and Sediment Control Regulations – new
construction
38. Four Categories of Effects
• Hydrology
• Geomorphology
• Habitat
• Water Quality
39. Water Quality
• Sediments
Channel erosion can be the
primary sediment source!
• Nutrients
Maintained vegetated areas
& ag
• Temperature
Warm pavements and
pond pools
• Other
Oils, Greases, heavy metals,
toxics
40. Classification of State Waters
Can affect Tidal/Nontidal Wetland and Waterway
permitting
• Use I & I-P: Water Contact Recreation and Protection
of Aquatic Life
• Use II: Shellfish Harvesting Waters
• Use III & III-P: Natural Trout Waters
• Use IV & IV-P: Recreational Trout Waters
43. How is SWM Applied?
Two different ways
• State Erosion and Sediment Control Law
Temporary practices
• State Stormwater Management Law
Permanent practices
Maryland Stormwater Management Act – Incorporates SWM
Manual by reference and revised 2007
Formalizes “LID-like” or ESD to the MEP – and met if channel
stability and predevelopment groundwater recharge rates are
maintained and nonpoint source pollution is minimized….
structural stormwater practices may be used only if determined to
be absolutely necessary
44. What Really are Best
Management Practices?
Best Management Practices (BMPs) are policies,
practices, procedures, or structures implemented to
mitigate the adverse environmental effects on
surface water quality resulting from development.
BMPs are categorized as structural or non-
structural.
•Early Planning
•Low Impact Development, or Better Site Design, or Environmental Site
Design
•Local stream buffers and setbacks
•Minimize or disconnect impervious surfaces sheet flow, open section
pavement
•Devices- most significant factor affecting performance is construction and
maintenance!
45. BMPs and Permitting?
Smaller Volumes - try
first
“First Flush”
Preferred and most compatible
with ESD at-source and/or
pretreatment quality control
• Infiltration
– trench/basin
• Filtering
– sand filter/bioretention
• Hydrodynamic Devices above or
underground
– Curb & gutter vortex/filter
basin
• “Newer” Technology
– pervious surfaces/green
roofs
Larger Volumes – if
needed
When preferred is Insufficient
for quantity and quality
• Stormwater Ponds
– wet pond
– wet ED pond
– dry ED pond (for cold water w/
pre-treatment)
– multiple pond system
• Stormwater Wetlands
– shallow marsh
– ED shallow wetland
– pond/wetland systems
46. Erosion and Sediment Control
vs. Stormwater Management
E/S
• Construction Phase
• Sediments are primary criteria
• Can be temporary or “permanent”
SWM
• Post-construction
• Manages various pollutants
• Permanent
• May need Permit!
50. Common SWM Practices
• Better/Environmental Site Design
• Sheet flow management – prior to and after
conveyance
• Open section surfaces
• Engineered practices
51. “ESD” Practices Avoids Wetland
and Waterways Permits
• Preserving and protecting natural
resources
• Conserving natural drainage
patterns
• Minimizing impervious area
• Reducing runoff volume
• Maintaining 100 percent of annual
predevelopment groundwater
recharge volume
• Using green roofs, permeable
pavement, reinforced turf,
• And other alternative surfaces
• Limiting soil disturbance, mass
grading, and compaction
• Clustering development
• Any practices approved by the
Administration.
52. The Best BMP - Work with Forest
and Wetland Conservation
53. Work with Site Character Before
Devices = Avoids Permits
62. Stream Stabilization as a BMP =
Permit
• Can be effective
watershed
sediment control
practice
• Can be local
approval
requirement
• Can be a traded
credit
• Can be out-of-kind
wetland mitigation
63. Resources
• Maryland Department of the Environment
First stop for Wetland and Waterways Permit, NPDES Phase I and II,
MS4 Permits, Construction Permits, Industrial Discharge Permits
• U. S. Army Corps of Engineers Baltimore District for MDSPGP-5 and
Individual Permits
• MD DNR Forestry
• MD DNR Critical Areas Commission
• Local governments for NRI/FSD
• If individual permit, U. S. Army Corps of Engineers
• MD DNR for Rare Species, Habitats, Stream Biomonitoring data
• U.S. EPA for national standards and effluent guidelines
