Revisions to Nontidal Wetland Mitigation Regulations

September 30, 2026

Revisions to Nontidal Wetland Regulations

The Maryland Department of the Environment (MDE) is proposing to revise regulations in COMAR 26.23.01 through 26.23.05, with a focus on the nontidal wetland mitigation regulations. The draft regulatory language is included here.

Goals of the Revisions

Encourage more mitigation options by promoting establishment of mitigation banks and a viable in-lieu fee program that can also be used to satisfy federal requirements.
Improve mitigation outcomes, by increasing the likelihood that compensatory mitigation requirements will be successfully completed in a timely manner.
Improve consistency with federal requirements under 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); and
Achieve consistency with Maryland law, specifically statutory amendments (§§5-901 and 5-910, Environment Article, Annotated Code of Maryland; adopted in 2016 for Nontidal Wetlands – Nontidal Wetland Mitigation Banking) to support mitigation banking and remove barriers to its use.

Process

MDE issued an Advanced Notice of Proposed Rulemaking (ANPRM) in September 2025 that included the draft regulatory language and in-lieu fee rates. MDE received numerous comments during this ANPRM., which were considered and incorporated where appropriate, resulting in the new regulatory language currently being proposed.

MDE initiated Small Business Posting, and anticipates publication of the Notice of Proposed Action in the Maryland Register by December 2026 which will include the opportunity for submission of public comments and a public hearing.

For questions or comments on these draft regulations, please contact:
Ms. Kelly Neff
Wetlands and Waterways Protection Program
Maryland Department of the Environment
1800 Washington Boulevard
Baltimore, MD 21230
Email: [email protected]

Supporting Materials

Proposed In-Lieu Fee (ILF) Rates (PDF): During the ANPRM, many commenters noted that the proposed in-lieu fees were unrealistic and needed updates based on recent cost estimates. To address this, MDE published a public notice in February 2026 requesting cost estimates for wetland mitigation projects. We received over 40 estimates. We also reviewed existing mitigation cost data, land values, and key factors for program success, such as risk and inflation. The updated ILF rates reflect the real costs of replacing high-functioning nontidal wetlands and support a federally recognized program. Setting realistic rates ensures the ILF Program is a practical option across the state. These rates will not be part of the regulation; future updates will be published by public notice.
Additional Resources: