Presentation for HalfMoon Education, Inc Seminar: Restoring Natural Areas in Maryland

1. Regulation and Permitting of
Resource Restoration Activities
Presentation for HalfMoon Education, Inc.
Restoring Natural Areas in Maryland
Andrew T. Der, C.E.P.
Friday April 23, 2021
Andrew T. Der & Associates, LLC
Environmental Consulting
1000 Fell Street | Baltimore, MD 21231
410.491.2808 | AndrewTDer@comcast.net

2. What We Will Learn
- How the Clean Water Act (CWA) is often a basis
for federal, state, and local regulatory compliance
- How the “trigger” for regulation is not project
intent, but rather grading and earth moving
- How this regulates projects such as stream,
wetland, and forest restoration, stormwater
management (SWM) retrofit, and access road
construction, even if temporary
- How the limits of waters of the united states
(WUS) can facilitate additional state and local
environmental regulation – even in uplands

3. What is the Clean Water Act?
• 1948 Federal Water
Pollution Control Act
and 1972 amendments
• Most influential
environmental law in
history
• Prohibits “discharges”
for first time to waters
of the U.S. (WUS)
• Can be a basis for
other current state and
local criteria

4. What are Waters of the U. S.?
• The CWA regulates WUS
comprised of surface water
including tidal navigable water,
nontidal navigable water, rivers,
streams, lakes, ponds,
contiguous headwaters - and
contiguous wetlands
• But how far up does it go
before it is upland habitat?
This is the key.
• Extent of WUS determines extent
of other CWA Sections and other
state and local criteria – and is a
regulatory driver of restoration
projects – coming up

5. CWA Section 404
• Can be the most
prominent federal
process for any
construction in WUS
• Regulates discharges
(grading, fill) to WUS,
including wetlands
• Requires a U. S.
Army Corps of
Engineers (COE) joint
permitting process with
the Maryland
Department of the
Environment (MDE)

6. Why Wetlands?
• “Hard” upper limit of open water
is readily evident - but not when
a habitat transition where upper
limits of WUS are wetland limits
determined at the ground level
by COE Manual and Supreme
Court Rulings
• Wetland limits can determine
the extent and nature of any
restoration project net gain
• Is it wetland creation or
restoration? Not the same
• Is it upland forest or wetland
forest?
A wetland that looks like a wetland may not be – and an upland that
looks like an upland may be a wetland

7. What is - or is not - Regulated?
• Two of the most prominent Supreme Court rulings says the COE will not
regulate some isolated and ephemeral flowing WUS
• The MDE, MD DNR, and localities frequently “add on” more features such
as the 100-year floodplain, additional environmental setback buffers to
waters and sensitive species, and forest retention/afforestation
• These processes can require federal, state, and local coordination with
other resource agencies regarding rare species/ habitats, migratory
species, high quality waters, forest conservation, disadvantaged
communities, historic/archeological properties, etc.
• Part of this coordination can require a public notice and hearing process –
often overlooked in project planning
• The “trigger” for these are not project intent, but most forms of new
construction, grading, and earth moving for rock placement and stream
stabilization, stormwater management (SWM) retrofit, wetland elevation
grading, or construction access roads, even if temporary

8. A Quick Primer on Why WUS
Rules are Deliberated
• Initial pre-2015 rules were historically generic leaving determinations
more subjective at the staff and field level
• Pre-2020 rules include regulatory terms such as significant nexus,
neighboring, floodplain, and riparian area which - may - be less clear
and allow more waters to come under federal authority than intended -
especially “significant nexus”
• In other words, some stormwater management (SWM) conveyances
constructed in “non-waters”, or upland, areas might be regulated
• Potentially contradict Supreme Court rulings
• Current 2021 rules aligns more with Court intentions

9. Initial vs. Previous vs. Current?

10. Three Common Wetland Types
• Forested Wetland
• Emergent
Wetland
• Scrub-Shrub
Wetland

11. Stream Limits When no Wetlands
• Up-stream limits defined by
field conditions, Regulatory
Guidance Letters (RGLs),
and Supreme Court case
guidance
• Rulemaking continues to
clarify WUS Rules
• Definition consists of field
stream indicators and
Ordinary High Water (OHW)
mark (not same as MHW)

12. Stream and Wetland Limits
• Application of written
criteria subjective in the
field
• Limits not always clear
• Bottom line - limits of
waters including wetlands
(and conversely upland
habitat subject to different
criteria) determined via
collaboration process with
COE/MDE – and
consultants

13. COE/MDE Joint Permitting
• Combines the COE approval process with
the MDE Wetlands and Waterways Program
into a one-stop-shop approach
• Impact thresholds can establish minimal
processes – know them for planning
purposes
• Individual COE permit is a lengthy process

14. Agency Coordination Via the
COE/MDE Permitting Process
• Federal
– US EPA
– National Marine Fisheries Service
– Section 106/NHPA review
– US FWS
• State
– DNR/heritage and wildlife (rare species/fisheries)
– Historic preservation and archeology office
– Other state offices regarding: MDE Section 401 WQC, CZM, FEMA flood
zone/dam safety issues, Designated Use high quality waters (fisheries and public
health), Tier II waters, Forest Conservation Law – coming up
• Local/municipal
– Natural Resources Inventory/Forest Stand Delineation (Planning and Zoning
department frequently utilizes federal/state water resource regulation process)
– Includes tree/forest conservation
– E/S and SWM
– Local floodplain coordination
– Coming up

15. What is a Regulated Impact?
• Impacts are discharges and
placement of material and grading –
roadways, utility lines, stream
restoration, pond and BMP retrofits
• Not all impacts are created equal -
COE only regulates placement of
material - MDE additionally regulates
vegetative clearing and excavation as
well as formally distinguishes
temporary vs. permanent impact
• Impacts are authorized by COE
Individual Permit, General Permit, MD
Letters of Authorization, MD Individual
Permits, MD Tidal License
• This process frequently affects and
interfaces with other State and local
buffer setbacks, priority forest
retention, and SWM – coordinate now
for value added work - but what are
these and how? Coming up.

16. COE/MDE Permitting
A separate COE permit not needed when impacts are within the Maryland
State Programmatic General Permit (MDSPGP) thresholds - know it, love it,
feed it, nurture it
https://www.nab.usace.army.mil/Portals/63/docs/Regulatory/Permits/MDSPGP5.pdf?ver
=2016-09-30-095259-630
• COE 404 dredge and fill permit programmatically issued to MDE as MDSPGP – very few
Nationwide General Permits (NWP) in Maryland
• COE regulates WUS only – not isolated waters, some ditches, nontidal wetland buffers, or
100 year floodplain which are all MDE regulated
• Always try to fit WUS impacts to MDSPGP thresholds (depends on activity and can be
5,000 sf, 10,000 ft, 200 lf, 0.5 acre, etc.) - and for MDE waters, a Letter of Authorization (LOA -
5000 sf) – up to 1 acre for isolated waters
• Don’t forget Corps Regional General Permit for Chesapeake Bay TMDL restoration
projects and NWP #27 for stream restoration
• Otherwise, Individual Corps permit lengthy requiring additional purpose and need,
alternatives analysis, and federal public notice and interagency comment – can be involved

17. COE versus MDE Permitting
MDE Wetlands and Waterways Program (WWP) regulates state
waters and wetlands
• Includes most COE WUS – and - 100 yr FP, isolated waters, 25’ nontidal wetland buffer
(by policy can include a 100’ buffer for “Tier II waters” and “NTWSSC” including special
NTW E/S BMP Conditions), and potential “non-fill” tree clearing impacts
The WWP combines numerous separate state permitting
regulations into one Wetlands and Waterways Permit with attached
COE MDSPGP conditions
• Nontidal Wetland and Waterways Permit – over 5,000 sf of waters and wetlands
requires MDE individual permit with alternatives analysis, public notice, and mitigation
• Tidal Waters and Wetlands License and Permit (no regulated floodplain or buffer) – and
independent Chesapeake Bay Critical Area (CBCA) has 100’
• Coastal Zone Management Act
• Section 401 Water Quality Certification – can impose additional BMPs or restoration
criteria

18. What is a Single and Complete
Project?
• Independent Utility
– Usually defines single and complete
– “A project is considered to have independent utility if it would be
constructed absent the construction of other projects in the
project area.”
• Challenging for:
– Lengthy stream restoration
– Lengthy coastal/shoreline restoration
– Linear roadways
– Phases?
• May warrant secondary and cumulative impact analysis

19. Pre-application Coordination
• Optional but essential for
most projects – especially
– restoration projects –
no cookbook
• Reveals environmental
constraints and issues
not always evident in
desktop and database
studies
• Solicits formal comments
regarding avoidance,
practicable, mitigation,
sensitive species or
habitat concerns,
historical resources

20. Pre-application Coordination
• Can be combined with field verifications or
separate in-office meeting
• Addresses matters of “co-applicant” and
“permittee” and property owner status
• Addresses maximum use of MDSPGP and MDE
LOA and minimization opportunities

21. Joint Permit Application (JPA)
JPA
https://www.nab.usace.army.mil/Portals/63/docs/Regulatory/Permits/MD_Application.pdf
MDE application portal
https://mde.maryland.gov/programs/water/water_supply/Pages/WetlandsandWaterwaysPermitAppli
cationsandForms.aspx
COE application process portal
https://www.nab.usace.army.mil/Missions/Regulatory/Permit-Types-and-Process
• Frequently an on-point well-written cover letter is the “real” application and the
actual form back-up
• Purpose and Need
• Alternatives Analysis
• Plans depicting limits of waters including wetlands field delineated and
surveyed – sf of open water and stream, sf of wetlands, sf of buffer, lf of
stream, cu yd of FP
• Project plans depicting limits of disturbance including all temporary and
permanent activity including construction access in square feet overlaid onto
waters limits
• Public notice? For restoration, depends on impacts

22. Agency 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
• On-site avoidance and minimization
• Address Agency comments (includes commenting agencies)
• Public Notice (PN) – MDE or COE?
• Address PN comments if any

23. Permit Mitigation – a common
driver of restoration projects
Customary criteria for other in-fill project permit conditions
(i.e., development project permit, bank, SHA, etc.)
• 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 SWM retrofit
• Five year (usually) performance monitoring requirement
• May also be required for permanent access roads
Current federal mitigation guidance allows for more out-of-
kind watershed approaches based on function and value
losses over area of impact - proposed new banking and
fee-in-lieu regulations in process now.

24. Coordination with Other State
and Local Resource Regulatory
Criteria and Approval
Processes
- or -
just when you thought you were
done……

25. CWA Section 401 WQC
Part of MDE WWP Permit and
concurrent when only a COE
Section 404 Permit required
Also when a FERC license is
required
Certifies compliance with
state water quality standards
Applies only to WUS impacts or
Licensing action – so not all state
waters
A 401-only example is
Conowingo Dam

26. What are MDs Water Quality
Standards?
• Maintain designated uses (e.g. recreation, aquatic
habitat, drinking water) – four Classes
• Can be numeric and narrative and may be basis for
sensitive waters requirements – time of year
• Numeric - DO, Temp, pH, Turbidity, bacteria, toxics
• Narrative – Protection of aquatic
life...fishable…swimmable
• 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…”

27. Classification of State Waters
Can affect MDE WWP permitting with in-stream
work time-of-year restriction
• 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

28. CWA Section 402 (aka NPDES)
• An authorization for restoration
work usually not needed (perm
impact only) but this is a strong
driver of restoration projects
• Referred to as National Pollutant
Discharge Elimination System
• Originally permitted individual
point sources and industrial
discharges – and still does
• Over time, acknowledged
nonpoint source stormwater
discharges need regulation
• But how could all stormwater
discharges be regulated
realistically? Answer is next

29. CWA Section 402 Synopsis
• Administered by MDE
programmatic permits in
two phases every five
years
• Phase I authorizes new
construction discharge via
a Construction General
Permit (GP) - and existing
built stormwater systems
by a Municipal Separate
Storm Sewer System
(MS4) General Permit –
Permit conditions
include stream/wetland
restoration and SWM
retrofit CIP projects
• Phase II authorizes
smaller disturbance
thresholds for new
construction discharges -
and smaller MS4 localities
and entities
Some rural regions of Maryland (gray) not regulated and
state-only SWM (or ag management) criteria applies

30. Clean Water Act Section 303 (aka
TMDL) – also a restoration driver
• After the state lists their impaired
waters, a Total Maximum Daily
Load (TMDL) establishes the
maximum pollutant level for
restoring water
• Been around for smaller
segments for years – the Bay
TMDL switches reference to
include entire watershed - largest
in the country
• MS4 compliance is a means for
TMDL compliance through 3
Phases of Watershed
Implementation Plans (WIP)
• Non-MS4 jurisdictions have
other challenges with WIP

31. 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
• MD State Forest Conservation Law - a major driver of
reforestation, afforestation, and forest restoration/mitigation
Administered directly for state/federal by MD DNR, but delegated
to localities for local and private lands. Requires NRI/FSD which is
the local mechanism for 100’ or more buffers from waters -
includes and requires a waters/wetland delineation - so could serve
as basis for JPA plans as well as first SWM concept
• Federal and State projects frequently have own programmatic
agreements

32. Quick SWM Primer

33. What Happens – a major driver for
SWM pond/stream restoration

34. How is SWM Applied on Project
Level?
Two different ways
• State Erosion and Sediment Control Law
Temporary practices
• State Stormwater Management Law
Permanent practices – seldom applies for most restoration projects
if no new impervious surfaces created – but for FYI,
Maryland Stormwater Management Act – Incorporates SWM Manual by reference
and revised 2007
Formalizes Environmental Site Design (ESD) to the Maximum Extent Practicable
(MEP) – and compliance achieved if channel stability and predevelopment
groundwater recharge rates are maintained and nonpoint source pollution is
minimized to mimic “woods in good condition”…. structural stormwater practices
may be used only if determined to be absolutely necessary

35. E/S Practices and Restoration

36. E/S Practices and Restoration

37. Surface Stabilization = No
Permits – Just E/S

38. Stormwater Stream Instability =
JPA

39. Stormwater Stream Instability =
JPA

40. Stream Restoration/Stabilization =
JPA
• Can be effective
watershed
sediment control
practice
• Can be local
approval
requirement
• Can be a traded
credit
• Can be out-of-
kind wetland
mitigation

41. Restoration can include Wetland
and Forest Creation/Conservation

42. Onsite Resource Restoration
Before Using BMPs = No JPA

43. Bioretention & Landscape Restoration

44. Bioretention & Infiltration can
Sustain Restoration

45. Landscaped Bioretention Facility

46. Pond Retrofit/Enhancement and
Wetland Restoration = JPA

47. Transition Habitat

48. Transition Habitat

49. Enhance and Plant Existing Ponds =
JPA? Yes or No?

50. Agency Resources
• Maryland Department of the Environment
First stop for Wetland and Waterways Permit, NPDES Phase I and II,
MS4 Permitting, NPDES Construction and Industrial Discharge Permits
• U. S. Army Corps of Engineers Baltimore District for MDSPGP and
Individual Permits
• MD DNR for state and federal land Forest Conservation Act
• MD DNR Critical Areas Commission for state and federal land
• Local governments for NRI/FSD, Forest Conservation, and CBCA for
private and county/city lands through local Planning Department review
• MD DNR for state Rare Species, Habitats, Stream Biomonitoring data
• U.S. FWS/U.S. EPA for national standards and federal species/habitat
• NMFS for anadromous fishery species compliance

51. Epilogue - What Now for WUS
Rules?
Legislators, stakeholders and media continue to clash over the clarity
of water rules that may not be so clear
- Some circuit courts already overturned the 2015 rules in 28 states years ago
reverting to prior criteria
- Other courts stayed decisions state-wide and a court in May 2019 overturned
the 2015 rules in three more states
- The Supreme Court has not made relatively significant determinations since
their two major rulings
- New (actually old) Rules hit the ground in 2021
- Congress continues to disagree among themselves
- The COE – the primary regulatory arm - asserts they had little involvement
- Every state has the ability to regulate more than WUS – and at a minimum also
through Section 401 state WQC
Media frequently does not understand the technical issues under
deliberation

52. What We Have Learned
- The CWA and the extent of WUS, along with MDE and local
processes – directly or indirectly – affects restoration
project compliance at the site level
- States and localities frequently add their own resource
regulatory processes and criteria into upland habitat areas
referencing waters limits
- WUS limits are referenced as a “regulatory baseline” for
restoration projects including E/S, SWM, and other site-
level requirements at the federal, state, and local level

53. What We Have Learned
- COE and MDE water definitions can also be the baseline
for site design, LOD setbacks, and landscaping
requirements including forest conservation
- While federal criteria are uniform throughout the country,
it is imperative that project planners know the local and
state supplemental criteria reflecting the local
environment, ecology, and resource character at the site
and watershed level
Questions/Discussion?