Maryland Wetland Laws and Maryland Wetland Laws and ComplianceCompliance

Presentation for Halfmoon Presentation for Halfmoon Education, Inc.Education, Inc.

Jessup, MarylandJessup, Maryland

November 17, November 17, 20162016

1000 Fell Street | Baltimore, MD 212311.410.491.2808 | AndrewTDer@comcast.net

Andrew T. Der & Associates, LLCEnvironmental Consulting

Getting a U. S. Army Corps of Getting a U. S. Army Corps of Engineers/Maryland Department Engineers/Maryland Department

of the Environment of the Environment Tidal/Nontidal Wetland and Tidal/Nontidal Wetland and

Waterways PermitWaterways Permit

– – or – or –

(almost) Everything You Wanted (almost) Everything You Wanted to Know About a Joint to Know About a Joint

Federal/State Permit Application Federal/State Permit Application (JPA) But Were Afraid to Ask(JPA) But Were Afraid to Ask

Review of Regulated WatersReview 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.

Definition of WetlandsDefinition 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.”

Definition of WetlandsDefinition 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!

Hydrology ParameterHydrology ParameterIs there water for14 consecutivedays or more in ayear?

Determined fromdata or secondaryvisual indicators

Hydric Soils ParameterHydric Soils ParameterAre there hydric soilspresent?

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

Hydrophytic Vegetation Hydrophytic Vegetation ParameterParameter

Is there apredominanceof wet tolerant plantspecies present?

Species classified inNational Wetland

Plantlists, Supplements

andtext books

Three Common Wetland TypesThree 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

Three Common Wetland TypesThree Common Wetland Types• Forested

Wetland

• Emergent Wetland

• Scrub-Shrub Wetland

Stream Definitions?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

Stream and Wetland LimitsStream 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

What Does All This Mean?What Does All This Mean?

Important Court RulingsImportant 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

Important Court RulingsImportant Court RulingsRapanos 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

What is Not (or should not be) What is Not (or should not be) Regulated by the Corps?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

Corps and MDE Joint Corps and MDE Joint Permitting CriteriaPermitting 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 permitCorps 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

Corps and MDE Joint Corps and MDE Joint Permitting CriteriaPermitting 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

Are These Regulated?Are These Regulated?

ReferencesReferences• 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&e

xt=xlsx

• National Wetland Plant List– http://rsgisias.crrel.usace.army.mil/nwpl_static/data/docs/lists_2014/National/National_20

14v1.pdf

What is a Regulated Impact?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?

What is a Project?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

Agency CoordinationAgency 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

Jurisdictional DeterminationsJurisdictional 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?

Pre-application CoordinationPre-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

Pre-application CoordinationPre-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

MitigationMitigation

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

Joint Permit Application (JPA)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”

Application ReviewApplication 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

Application ReviewApplication Review

• On-site avoidance and minimization• Address Agency comments (includes

commenting agencies)• Public Notice (PN) – MDE or Corps?• Address PN comments if any

Coordination with Other Coordination with Other State and Local Water State and Local Water Resource Regulatory Resource Regulatory Criteria and Approval Criteria and Approval

ProcessesProcesses

-or –or –

just when you thought you just when you thought you were donewere done

What is CWA Section 401 What is CWA Section 401 WQC?WQC?

Part of Wetland andWaterway Permit andconcurrent with 404jurisdiction, applies

onlyto waters of the U.S.impacts and notgroundwater and notisolated wetlands ormany ephemeralchannels

Water Quality StandardsWater 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…”

But Wait – There’s MoreBut 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 LawAdministered 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

And Yet, Still MoreAnd 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

Stormwater Stormwater Management?Management?

What HappensWhat Happens

Four Categories of Four Categories of EffectsEffects

• Hydrology

• Geomorphology

• Habitat

• Water Quality

Water QualityWater Quality• Sediments

Channel erosion can be theprimary sediment source!

• NutrientsMaintained vegetated areas & ag

• TemperatureWarm pavements andpond pools

• OtherOils, Greases, heavy metals,toxics

Classification of State Classification of State WatersWaters

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

Stormwater Stream Stormwater Stream Instability = PermitInstability = Permit

Stormwater Stream Stormwater Stream Instability = PermitInstability = Permit

How is SWM Applied?How is SWM Applied?

Two different ways

• State Erosion and Sediment Control Law Temporary practices

• State Stormwater Management Law Permanent practicesMaryland Stormwater Management Act – Incorporates SWM Manual by reference and revised 2007Formalizes “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

What Really are Best What Really are Best Management Practices?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!

BMPs and Permitting?BMPs and Permitting?Smaller Volumes - try

first“First Flush”Preferred and most compatiblewith ESD at-source and/orpretreatment 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

Erosion and Sediment Erosion and Sediment ControlControl

vs. Stormwater vs. Stormwater ManagementManagement

E/S• Construction Phase• Sediments are primary criteria• Can be temporary or “permanent”

SWM• Post-construction• Manages various pollutants• Permanent• May need Permit!

Common E/S PracticesCommon E/S Practices

Common E/S PracticesCommon E/S Practices

Surface Stabilization = Surface Stabilization = No PermitsNo Permits

Common SWM PracticesCommon SWM Practices

• Better/Environmental Site Design

• Sheet flow management – prior to and after conveyance

• Open section surfaces

• Engineered practices

““ESD” Practices Avoids ESD” Practices Avoids Wetland and Waterways Wetland and Waterways

PermitsPermits

The Best BMP - Work with The Best BMP - Work with ForestForest

and Wetland Conservation and Wetland Conservation

Work with Site Character Work with Site Character Before Devices = Avoids Before Devices = Avoids

PermitsPermits

Bioretention & InfiltrationBioretention & Infiltration

Bioretention & InfiltrationBioretention & Infiltration

Landscaped Bioretention Landscaped Bioretention FacilityFacility

Hydrodynamic DevicesHydrodynamic Devices

Pond and Wetlands = Pond and Wetlands = PermitsPermits

Transition HabitatTransition Habitat

Transition HabitatTransition Habitat

Enhance & Plant Dry Ponds = Enhance & Plant Dry Ponds = Permit? Yes or No?Permit? Yes or No?

Stream Stabilization as a Stream Stabilization as a BMP = PermitBMP = 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

ResourcesResources• 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