Maryland Department of Environment Wetlands Forum Highlights

Federal Compensatory Mitigation Rule

• New compensatory mitigation rule issued on April 10, 2008 ( 40 C.F.R. ‘ 230.91 through 230.98) replaces several mitigation guidance documents and regulatory guidance letters issued by the Corps. 40 C.F.R. ‘ 230.91(e). For example, the new rule removes the Ahard [email protected] for on-site, in-kind mitigation that was established by the guidance documents, and now emphasizes a holistic, Awatershed [email protected] to mitigation.
• The new rule will, among other things, require approval of an instrument for long-term management (40 C.F.R. ‘ 230.97), a mandatory monitoring period for no less than five years (40 C.F.R. ‘ 230.96(b), and financial assurances to ensure that the compensatory mitigation project will be successfully completed (40 C.F.R. ‘ 230.93(n)).

Jurisdictional Determinations post-Rapanos

Beth Bachur of the Army Corps of Engineers summarized how the Baltimore District will approach Jurisdictional Determinations (JDs) in light of the Rapanos decision and subsequent joint guidance issued by EPA and the Corps. She highlighted four points:

• All isolated water determinations (including those for activities authorized under the MDSPGP-3) will require JDs, and the Corps will not use the significant nexus test to recapture isolated wetlands.
• MDE will verify activity and perform JDs (but no JD form is required) for Category I activities authorized by the MDSPGP-3.
• Category I and II activities with special Corps conditions, Category III activities authorized by the MDSPGP-3 and non-reporting Nationwide Permits will require preliminary (non-appealable) JDs for documentation, including information on significant nexus determinations, if applicable. An applicant may request a full (appealable) JD separately for these activities.
• Individual Permits, Letters of Permission, standalone JDs, and reporting Nationwide Permits will entail a full (appealable) JD approved by the Corps.

Maryland Legislative Update – bills that have passed applicable to wetlands

• Senate Bill 590 carves out an exception in the 1 year statute of limitations for prosecutions or suits for fines, penalties or forfeitures (Md. Code Ann., Cts. and Jud. Proc. ‘ 5-107) for violations of the Environment Article. Prosecutions or suits for fines, penalties or forfeitures for such violations must be instituted within 3 years after the date the Department knew or reasonably should have known of the violation.
• House Bill 973 establishes the rebuttable presumption that nonstructural shoreline stabilization (soft shorelines; living shorelines) be used to prevent erosion of riparian property. A landowner may employ structural shoreline stabilization measures in appropriate areas as designated by MDE, and in those circumstances where the landowner has shown that soft shoreline stabilization would not be feasible due to the physical characteristics of the particular property or area.
• House Bill 1056 establishes application fees for projects authorized by the Wetlands and Waterways Program. Application fees range from $750 for minor projects or general permits, to $7500 per acre for major projects or major modifications with proposed permanent impacts of 1 acre or more. The notice of completed application for permits issued under Title 1 or Title 5 of the Environment Article will include an estimated time of issuance (Title 1) or the date by which MDE will grant, deny, or condition the permit. These provisions do not appear to apply to tidal wetlands licenses and permits issued under Title 16. State, county, and municipal applications are exempt from the fee, as are agricultural and forestry best management practices contained in an approved erosion and sediment control plan. Stream restoration, vegetative (soft) shoreline stabilization, and wetland creation projects are also exempted.