The Maryland Department of the Environment (MDE) intends to revise regulations in COMAR Title 26 Subtitle 23, Nontidal Wetlands in 2025. Revisions will be proposed to:

1. Improve consistency with federal requirements listed in the 2008 Federal Mitigation Rule (Code of Federal Regulations 33 CFR Parts 325 and 332 for the Department of the Army and 40 CFR Part 230 for the U.S. Environmental Protection Agency for Compensatory Mitigation for Losses of Aquatic Resources);
   
2. Achieve consistency with Maryland statutory amendments (§§5-901 and 5-910, Environment Article, Annotated Code of Maryland; adopted in 2016 for Nontidal Wetlands – Nontidal Wetland Mitigation Banking) to remove disincentives to mitigation banking;
3. Align MDE’s regulatory authority to implement in-lieu fee and mitigation banking programs to be consistent with federal requirements (e.g., establishing an in-lieu fee program that can also be used to satisfy federal requirements);
   
4. Enable MDE to continue to require and oversee compensatory mitigation on behalf of the U.S. Army Corps of Engineers through a State Programmatic General Permit; and
5. Increase the likelihood that compensatory mitigation requirements will be successfully completed in a timely manner.

Major topics for which revisions are needed:

• Clarify order of preference for mitigation options, with consideration for​ environmental justice.
  
• Provide additional mitigation options, thereby reducing permitting hurdles and resulting in higher-quality mitigation projects:
• Encouraging establishment of mitigation banks - include consistent requirements for mitigation banks, in-lieu fee, and permittee-responsible mitigation.​
• Developing a robust in-lieu fee pro​gram that is recognized by the U.S. Army Corps of Engineers, which includes establishing realistic in-lieu fee rates.
  
• Improve replacement of lost nontidal wetland acreage and function.
• ​​Consider the effects of climate change.
• Adjust timing for submittal of mitigation plans and completion of mitigation projects, and detail requirements of financial assurances.
  
• Update performance monitoring.
  

MDE initiated an outreach effort in 2017 to obtain input on potential regulatory changes from key stakeholder groups and the general public, as described in the Public Notice. While the updates did not move forward at that time, MDE is again pursuing these regulatory changes.

For more information, please contact Kelly Neff at 410-537-4018 or kelly.neff@maryland.gov.