Notice of Intent to Revise Maryland's Nontidal Wetland Mitigation Regulations

The Maryland Department of the Environment (MDE) intends to revise regulations in COMAR Title 26 Subtitle 23, Nontidal Wetlands in 2024. Revisions will be proposed to:

  1. Improve consistency with federal requirements listed in the 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 statutory amendments to §§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;
  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 to improve consistency with federal and statutory requirements include:

  • Order of preference for mitigation options, with consideration for​ environmental justice
  • Replacement of lost wetland acreage and function, including ratios for replacement
  • Mitigation banking
  • Use of an in-lieu fee pro​gram to meet federal requirements, which includes addressing the adequacy of existing in-lieu fee rates
  • Timing for submittal of mitigation plans, completion of mitigation projects, and receipt, amount, and duration of bonds
  • 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

Additional Information from the 2017 Effort:

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