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Mde Wetland Mitigation Program Background

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Mde Wetland Mitigation Program Background PROJECT PURPOSE AND OBJECTIVES Maryland has had a compensatory mitigation program as part of its regulatory nontidal wetland program since the regulatory program began in 1991. Regulations have provisions for the preferred locations of mitigation sites, replacement ratios, required design information, bonding, monitoring, and reporting, and success standards. Success standards primarily consist of the presence of suitable hydrology and coverage by a certain percentage (85%) of desirable wetland vegetation. In addition to regulatory standards, Maryland also uses guidance prepared by an Interagency Mitigation Task Force (IMTF) in 1994. Participating agencies were: U.S. Army Corps of Engineers, U.S. Environmental Protection Agency, U.S. Fish and Wildlife Service, National Marine Fisheries Service, Federal Highway Administration, Maryland Department of the Environment (MDE), Maryland Department of Natural Resources, and the Maryland State Highway Administration. Maryland’s Nontidal Wetlands Act and the Chesapeake Bay Agreement both have requirements to achieve a “no net loss” of wetland acreage and function. Maryland has met the acreage goal through minimization of wetland losses and compensatory mitigation. Most wetlands that are proposed for loss or adverse impacts through a regulated activity are assessed by the permit reviewer using their best professional judgment. Permittees are required to describe how their proposed mitigation will replace both acreage and function. However, no procedures have been implemented to predict functional success of mitigation sites. The success of the mitigation program was a priority goal of Maryland’s State Wetland Conservation Plan, completed in 2003. The Plan was developed by MDE with an advisory group of stakeholders from federal, State, and local governments, consulting, business, agriculture, forestry, mining, other advisory groups and environmental groups. Some work group members have expressed interest in whether or not mitigated wetlands are performing wetland functions. In 2001, the National Research Council (NRC) published the report Compensating for Wetland Losses under the Clean Water Act that described many shortcomings of mitigation at the national scale, particularly in the replacement of wetland functions. The purpose of this project is to conduct an in depth examination of the State’s mitigation program, and develop new guidance for aspects of the program that are deficient. Every stage of a mitigation project will be evaluated: conceptual planning and site selection; project design; construction; monitoring; length of time for projects to be completed; and staff follow up. One aspect of monitoring to be expanded upon in detail is the approach to determine if mitigation wetlands are successfully performing wetland functions. All types of mitigation project types (creation, restoration, or enhancement) will be considered. Wetland functions that will be evaluated include water quality improvement, flood attenuation, groundwater discharge, and wildlife habitat. The approach must also be developed in such a way that implementation of the functional evaluation can be done in a timely and cost effective manner for the regulatory program. Key objectives will focus on overcoming the challenges associated with conducting a functional evaluation or assessment of a mitigated wetland. Since lands with existing high resource value are usually not used for mitigation, it is a given that wetlands created, disturbed, or enhanced for mitigation are in somewhat disturbed areas. For this reason, the practice of comparing these mitigated wetlands to a relatively undisturbed reference wetland is more 1 difficult. In addition, the evaluation of wetland function in a mitigated or voluntarily restored wetland must project over a long period of time what the wetland functions will be. For example, if a 30-year old forested wetland were lost and mitigated, it would take another 30 years before a truly accurate assessment of wetland function could be made of the mitigated wetland. Another objective will be to develop some guidance on assessing cumulative impacts. The issue of cumulative impacts, and wetland mitigation to try to reduce adverse cumulative impacts, was raised by the work group advising the Department of the Environment during development of the State Wetland Conservation Plan. There is limited guidance available at the state and federal levels for addressing cumulative impacts. This report will be prepared under separate cover. MDE WETLAND MITIGATION PROGRAM BACKGROUND Definitions, procedures, and requirements related to mitigation are described in COMAR 26.23.04 Nontidal Wetlands Mitigation and in Maryland Nontidal Wetland Mitigation Guidance (MDE, 1998). This document was funded through a State Wetland Program Development Grant from the U.S. Environment Protection Agency. The following text is from MDE, 1998: What is mitigation? When authorizations are issued for activities which will cause unavoidable losses of nontidal wetlands, the losses must be countered with wetland gains to meet the “no net loss” goal. The primary means of accomplishing wetland gains is through wetland mitigation. Nontidal wetland mitigation is the creation, restoration, or enhancement of nontidal wetlands, to compensate for nontidal wetlands that were or will be lost due to regulated activities or non-exempt agricultural activities. The State definition of mitigation corresponds to the Federal definition of compensatory mitigation. Mitigation is not required for temporary impacts to wetlands or impacts to the wetland buffer or expanded buffer. Nontidal wetland creation projects establish nontidal wetlands on upland sites. These projects usually involve lowering the elevations of uplands by grading the soil for the purpose of increasing the frequency of soil saturation, flooding, and ponding. Nontidal wetland restoration projects reestablish nontidal wetlands on sites where they were formerly located. For example, the removal of drainage structures from agricultural fields can result in nontidal wetland restoration. Nontidal wetland enhancement projects provide additional protection to, or improve the functions of, nontidal wetlands. Planting wetlands that are farmed or dominated by lawn grass is the most common type of enhancement project. 2 Stream restoration projects, such as stabilizing the banks or restoring the natural meander pattern to a channelized stream, are examples of projects that can enhance existing nontidal wetlands. Enhancement projects do not increase the acreage of nontidal wetlands. When is mitigation not required? The following activities are exempt from permit and mitigation requirements: • Forestry activities • Traditional agricultural activities such as plowing and cultivating, which do not drain, dredge, fill, or otherwise convert undisturbed nontidal wetlands • Development activities with minimal impacts to nontidal wetlands and which are exempt or qualify for a Letter of Authorization, except Letters of Authorization for activities in the Chesapeake Bay Critical Area. What activities require mitigation? Mitigation is required for the regulated and agricultural activities listed below: • Removal, excavation, or dredging of soil, sand, gravel, minerals, organic matter, or materials of any kind • Changing existing drainage characteristics, sedimentation patterns, flow patterns, or flood retention characteristics • Disturbance of the water level or water table by drainage, impoundment, or other means • Dumping, discharging of material, or filling with material, including the driving of piles and placing of obstructions • Grading or removal of material that would alter existing topography • Destruction or removal of plant life that would alter the character of a nontidal wetland • Agricultural activities in undisturbed wetlands Since it is important to understand the steps in the mitigation process in order to evaluate the mitigation program, this process is summarized as follows: 1) During the application review process, the applicant proposes mitigation through their Phase I Mitigation Plan. This Phase I plan is basically a concept plan. Some of the things it should include are justification for selecting the mitigation site, site location, acreage, vegetation type, and proposed hydrology source. It may instead be a proposal to pay into the MDE Nontidal Wetland 3 Compensation Fund or buy credits from an approved Consolidated Wetland Mitigation Site. The Phase I plan must be submitted and approved before the Permit/LOA is issued. The wetland mitigation is required as a condition of the Permit/LOA. If this condition is omitted from the Permit/LOA, MDE cannot require mitigation. 2) The Phase II Mitigation Plan is due within three months of the Permit/LOA decision date, unless another date is specified by the Department. This Phase II plan should include all the details about the mitigation site, including but not limited to the design, how the wetland mitigation will be achieved, grading details, planting plans, site access, soils, hydrology, construction schedule, and monitoring schedule. It should also include documentation that the wetland will be protected in perpetuity through deed restrictions, conservation easements, deeding the wetland to an organization that will protect it, or through restrictive covenants. MDE should make a decision about the acceptability of the Phase II plan within 45 days of receiving it (unless a final permit decision has not been made). MDE may request
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