Md. Code Regs. 26.23.04.03

Current through Register Vol. 51, No. 12, June 14, 2024

Section 26.23.04.03 - Mitigation Standards

A. Goal. It is the goal of the Act to attain no net overall loss in nontidal wetland acreage and function, and to strive for a net resource gain in nontidal wetlands. However, it may not be possible for the goal of no net loss to be achieved in each permit action. Achievement of this goal will occur through the regulatory components of this subtitle and other Statewide initiatives which incorporate nontidal wetlands creation, restoration, and enhancement projects outside of the regulatory framework.

B. Mitigation standards shall be determined in part through the use of acreage replacement ratios. Acreage replacement ratios are expressed as a relationship between two numbers. The first number shall specify the acreage of nontidal wetlands to be mitigated and the second shall specify the acreage of nontidal wetlands lost.

C. The Department shall consider the mitigation requirement for replacing a loss of nontidal wetlands to be fulfilled when:

(1) The following acreage replacement ratios have been met through in-kind creation or restoration for:

(a) Emergent nontidal wetlands-1:1 or 1.5:1 when using credit from an approved mitigation bank;

(b) Scrub-shrub nontidal wetlands-2:1 or 3:1 when using credit from an approved mitigation bank;

(c) Forested nontidal wetlands-2:1 or 3:1 when using credit from an approved mitigation bank;

(d) Emergent nontidal wetlands designated as nontidal wetlands of special State concern-2:1 or 3:1 when using credit from an approved mitigation bank;

(e) Scrub-shrub nontidal wetlands designated as nontidal wetlands of special State concern-3:1 or 4.5:1 when using credit from an approved mitigation bank; and

(f) Forested nontidal wetlands designated as nontidal wetlands of special State concern-3:1 or 4.5:1 when using credit from an approved mitigation bank;

(2) A minimum in-kind acreage replacement ratio of 1:1 has been met, and lost nontidal wetland functions have been replaced by additional creation, restoration, or enhancement activities including best management practices for agricultural activities;

(3) The Department has determined on a case-by-case basis that enhancement is the only mitigation option, and has specified requirements which have been met by the permittee or person conducting an agricultural activity; or

(4) The Department has specified mitigation requirements which have been agreed to and implemented by the permittee or a person conducting an agricultural activity.

D. The Department shall consider the mitigation requirement for replacing a loss of farmed nontidal wetlands to be fulfilled when the following replacement ratios have been met through:

(1) Enhancement of farmed nontidal wetlands-1:1 or 1.5:1 when using credit from an approved mitigation bank; or

(2) Creation or restoration of emergent, scrub-shrub, or forested nontidal wetlands-1:1 or 1.5:1 when using credit from an approved mitigation bank.

E. In order for enhancement activities to be accepted towards replacement of lost nontidal wetlands functions, the permittee or person conducting an agricultural activity may be required to:

(1) Perform a functional assessment on the wetland proposed to be impacted before the loss of any nontidal wetlands occurs based on-site assessment techniques acceptable to the Department; and

(2) Identify how enhancement activities are to replace specified nontidal wetland functions that will be lost.

F. Enhancement activities may be accepted to replace the loss of nontidal wetland functions when an enhancement activity provides additional protection to, creates, or improves the functions of, nontidal wetlands. Activities may include:

(1) Enhancement of farmed wetlands;

(2) Enhancement of degraded nontidal wetlands;

(3) Best management practices for agricultural activities;

(4) Department-approved wildlife ponds;

(5) Purchase or preservation of upland buffers adjacent to existing, created, restored, or enhanced nontidal wetlands;

(6) Purchase or preservation of existing nontidal wetlands; and

(7) Activities consistent with plans and agreements to create or improve waterfowl habitats in Maryland.

G. In determining if enhancement activities will replace nontidal wetland acreage and functional losses, the Department shall consider the following:

(1) Degree to which the enhancement activity replaces functions of the lost nontidal wetland;

(2) Benefits of the enhancement activity in rehabilitating or maintaining nontidal wetlands;

(3) Scope and extent of the enhancement activity;

(4) Proximity of the enhancement activity to the nontidal wetland loss;

(5) Technical merits of the enhancement activity and its likelihood of long-term success;

(6) Adverse impact of the enhancement activity on natural resources;

(7) Relationship of the enhancement activity to ongoing natural resource management activities; and

(8) Compatibility of the enhancement activity with approved comprehensive watershed management plans, if applicable.

H. Geographic Location. Mitigation projects preferably shall be connected to existing nontidal wetlands, waterways, or 100-year floodplains. Projects may be located on multiple parcels. Projects shall be located according to the following geographic location in order of preference, unless otherwise determined by the Department:

(1) Locations on-site;

(2) Locations off-site; and:

(a) Identified in a comprehensive watershed management plan approved by the Department;

(b) Identified in plans and agreements to create or improve waterfowl habitats in Maryland and approved by the Department;

(c) Where the Department has determined, in consultation with other State, local, and federal government agencies, that regional needs for nontidal wetlands functions strongly justify the siting of mitigation projects, and the mitigation project is located:

(i) In the watershed where the nontidal wetland loss occurred;

(ii) In the drainage basin where the nontidal wetland loss occurred; or

(iii Outside the drainage basin where the nontidal wetland loss occurred;

(3) In a county with delegation authority, the preferred location of off-site mitigation projects is within the county.

I. Siting Within Geographic Locations. In selecting sites within geographic regions for mitigation, a permittee or person conducting an agricultural activity shall pursue mitigation projects on upland sites which have undergone significant human disturbances. A permittee or person conducting an agricultural activity should avoid, whenever possible, siting mitigation projects on:

(1) Forested lands;

(2) Lands used for dredged disposal, mine refuse, or other purposes where contaminant problems may exist; or

(3) Lands which are existing or potential habitat for plant or animal species:

(a) Listed as endangered or threatened by the U.S. Fish and Wildlife Service;

(b) Listed as endangered or threatened or species listed as in need of conservation by the Department of Natural Resources; or

(c) Considered as a candidate for listing by the U.S. Fish and Wildlife Service, or considered to be locally unusual or rare by the Department of Natural Resources.

J. Project Standards.

(1) The permittee or person conducting an agricultural activity shall successfully implement the approved mitigation plan within the time period required by the Department and specified in the mitigation plan.

(2) Created or restored nontidal wetlands shall meet the following plant survival criteria:

(a) After 5 years, greater than 85 percent of the site shall be vegetated by planted species approved by the Department or by a species composition agreed to by the Department;

(b) Allowances shall be made for natural species changes as long as the plant communities are similar to those lost; and

(c) After 5 years, the nontidal wetland shall be dominated by native or adaptive vegetation.

(3) In the case of a permittee or person conducting an agricultural activity, who has proposed the use of natural revegetation as part of the creation, restoration, or enhancement project, after 5 years, greater than 85 percent of the site shall be:

(a) Vegetated by species similar to those found in the nontidal wetland lost or by a species composition agreed to by the Department; and

(b) Dominated by native or adaptive vegetation.

(4) In the case where the nontidal wetland was dominated by exotic or nuisance plants, the Department shall accept out-of-kind mitigation.

(5) The Department may not approve mitigation plans that include exotic or nuisance plants.

K. Protection Mechanisms.

(1) The permittee, bank operator, or person conducting an agricultural activity shall provide mechanisms to assure the protection of the created, restored, or enhanced nontidal wetlands in perpetuity. This may be achieved through any protection mechanism approved by the Department, including:

(a) Deed restrictions;

(b) Conservation easements;

(c) Deeding the created, restored, or enhanced nontidal wetland to an organization or public agency capable of protecting the area in perpetuity; or

(d) Restrictive covenants.

(2) Any protection mechanism under §K(1) of this regulation shall include provisions on the following:

(a) Language granting the Department, or any successor agency, access to the mitigation site for inspections during the monitoring period and for construction of the mitigation project, if the permittee or person conducting an agricultural activity forfeits a bond and the Department decides to complete construction of the mitigation project;

(b) In the case of an easement agreement, language allowing assignment of a permittee's, or person conducting an agricultural activity's, interest under the easement agreement to the Department, if the bond is forfeited and the Department decides to complete construction of the mitigation project;

(c) An absolute prohibition on the draining, dredging, removal, or filling of the created nontidal wetland site;

(d) Language that the restriction is perpetual, binding on the grantor's personal representatives, heirs, successors, and assigns and runs with the land.

Md. Code Regs. 26.23.04.03

Regulations .03 amended as an emergency provision effective October 1, 1993 (20:21 Md. R. 1649); emergency status expired April 1, 1994
Regulations .03 amended as an emergency provision effective June 1, 1994 (21:13 Md. R. 1151);
Regulations .03 amended permanently effective October 24, 1994, (21:21 Md. R. 1813)
Regulations .03 were recodified under COMAR 08.05.04 Nontidal Wetlands, February 1996