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The Maryland Department of the Environment – which has for many years operated programs to offset the effects of unavoidable losses of wetlands – is working to meet new federal standards designed to produce even better, more consistent results nationwide.
MDE’s Wetlands and Waterways Program is working with the U.S. Army Corps of Engineers and other government agencies to see what changes should be made in the way Maryland requires compensatory mitigation for lost wetlands. Maryland law requires “no net loss” of wetlands acreage and function – and though the state loses about 45 acres of wetlands a year, there was a net gain of more than 600 acres of nontidal wetlands from 1991 to 2009.
This success is in large part due to MDE’s “in-lieu fee” (ILF) programs, in which permittees that disturb wetlands pay money into a special fund that the Department uses to restore wetlands at another location. The new federal rule revises the requirements for these programs, making them similar to “mitigation banks,” with the goal of improving accountability and effectiveness.
A mitigation bank is a large wetlands project that is set aside to compensate for future wetlands losses through the purchase of credits by permittees who are disturbing wetlands. Since the federal Mitigation Rule attempts to transform ILF programs into mitigation banks, and the State does not currently operate its program as a bank, Maryland must reevaluate its existing programs.
An Interagency Review Team composed of the Army Corps, the U.S. Environmental Protection Agency, the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, and the Maryland Department of Natural Resources is evaluating MDE’s ILF programs. While the Army Corps has suggested that the rule is very flexible, the results of this review will require MDE to modify its regulations to address the new federal requirements.
The new federal goals include: implementing standards for mitigation that are based on the best available science; setting equivalent standards for the different mechanisms for mitigation projects to promote timely, high-quality mitigation; and enhancing public participation in decision making.
Wetlands protect and improve the health of the Chesapeake Bay by filtering and absorbing pollutants before they can reach waterways. Wetlands also provide critical habitat for fish, birds, mammals, and invertebrates. They protect against flooding and erosion and provide opportunities for outdoor activities.
Mitigation is required for all unavoidable wetland impacts authorized by MDE. Mitigation is usually accomplished by requiring the creation of new wetlands, restoration of historic wetlands, enhancement of degraded wetlands, or some acceptable combination. The Department may also accept monetary compensation if it is determined that permittee mitigation for wetland losses is not a feasible alternative. The payment is deposited into the MDE’s Nontidal Wetlands Compensation Fund or Tidal Wetlands Compensation Fund and used to construct wetlands throughout Maryland.
The majority of projects permitted by MDE authorized minor wetland impacts, which required small mitigation projects. The purpose of the ILF programs is to accept monetary payments from permittees with small mitigation requirements, so that the Department can construct larger, more environmentally sustainable projects.
Maryland has one mitigation bank, operated by a private consultant in the Fishing Bay watershed of Dorchester County.
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