Maryland’s Two Layer Program for Nontidal Wetlands Protection-First Up, Maryland’s Nontidal Wetlands
Updated: Jul 17, 2020
This week I will be illustrating the two different water permit systems Maryland has employed in order to protect its nontidal wetlands. Nontidal wetlands are usually known as marshes, swamps, bogs, wet meadows and bottomland forests. They are more generally defined as inland, freshwater areas usually covered or saturated with water for long periods of time. Nontidal wetlands provide a vast amount of positive characteristics to animal habitats, filter nutrients such as phosphorus and nitrogen, and provide scenic beauty to Maryland. In order to maintain these characteristics, Maryland instated two permit programs.
One of the two programs Maryland has implemented to preserve nontidal wetlands is the Maryland Nontidal Wetlands Act, which I will describe for you today. The act applies to all state nontidal wetlands except those within the Chesapeake Bay critical area, which I will get to later this week on the blog. The act implements a permitting system to regulate the development in nontidal wetlands and within a buffer surrounding each nontidal wetland.
Fortunately, for agricultural activities, the regulation provides exemptions. “A person conducting an agricultural activity is exempt from the requirement to obtain a nontidal wetlands permit.” (Maryland Code of Regulations 26.23.05.01). Unless the agricultural activity is explicitly exempted, you will be required to implement best management practices to protect nontidal wetlands through a soil conservation and water quality plan submitted to, and approved by, your local soil conversation district.
Agricultural activities that are exempt from the permit approval and mitigation requirements are:
(1) Repair and maintenance for agricultural activities in nontidal wetlands. These activities include repair and maintenance of:
(a) Drainage ditches;
(b) Farm ponds;
(d) Subsurface drains;
(f) Water control structures;
(g) Aquaculture ponds and associated structures;
(h) Roads and causeways; and
(i) Existing best management practices.
(2) Agricultural activities and operation and maintenance activities conducted in accordance with public drainage regulations contained in the Maryland Code of Regulations for approved Agricultural Drainage Projects.
(3) Agricultural activities on areas that have remained uncultivated for any reason. The exemption may not apply if agricultural activities have not taken place for 5 consecutive years.
(4) Agricultural activities on areas set aside or taken out of production if the area is under and complies with a formal program for agriculture. The exemption does not apply if agricultural activities have not resumed within 5 years after expiration of the time limit specified in the set-aside program.
(5) Structures for agricultural activities essential to the continued operation of a farm if the nontidal wetland being impacted is on land which is farmed, set aside, remaining uncultivated, or part of a crop rotation.
(6) Agricultural activities including plowing, seeding, cultivating, harvesting, tilling, grazing, farm pond construction, and draining on areas not otherwise fallow or part of a set-aside program, provided that the activities do not drain, dredge, fill, or otherwise convert a nontidal wetland on which agricultural activities are not presently conducted. The following apply:
(a) Construction or operation of a pond in nontidal wetlands used exclusively for wildlife management is not considered an agricultural activity.
(b) Agricultural activities in nontidal wetlands dominated by woody hydrophytes shall maintain a dominance of woody hydrophytes and not alter the surface or ground water hydrology or drain, dredge, fill, convert, or degrade the water quality of nontidal wetlands, to qualify for an exemption under this subsection.
(7) Agricultural activities in isolated nontidal wetlands of less than 1 acre and having no significant plant or wildlife value. A soil conservation district sh
(a) Determine whether an area is an isolated nontidal wetland based on published hydrologic and hydraulic data and data obtained in the field which shows whether the nontidal wetland is hydrologically connected.
(b) Determine whether a nontidal wetland has significant plant or wildlife value.
(c) Notify the Department when a determination is made under §B(7)(a) or (b) of this regulation. If the Department has not responded within 60 days of the notification, the determination made by a soil conservation district shall be considered correct. If the Department verifies or rejects the determination within 60 days of the notification, the decision made by the Department shall be binding on a soil conservation district.
(8) Agricultural activities whose cumulative impact for the entire and complete project is less than 5,000 square feet of nontidal wetland which contains no significant plant or wildlife value. A soil conservation district shall:
(a) Determine whether a nontidal wetland has significant plant or wildlife value
(b) Notify the Department when a determination under §B(8)(a) of this regulation is made. If the Department has not responded within 60 days of the notification, the determination made by a soil conservation district shall be considered correct. If the Department verifies or rejects the determination within 60 days of the notification, the decision made by the Department shall be binding on a soil conservation district.
(Maryland Code of Regulations 26.23.05.01)
I apologize for the long list of exemptions but exemptions are a good thing for agriculture! I am sure at this point, if you have read any of my posts concerning water law permits in Maryland, you can see how time consuming and sometimes costly they may be. This is one area of water law in Maryland that exempts most agricultural activities. It is important that you implement best management practices to protect nontidal wetlands and provide mitigation through a soil conservation and water quality plan if you do not fall under one of the exemptions.
In developing your best management practices plan, you will want to control soil loss and minimize sediment deposition, water quality degradation, adverse impacts to surface and groundwater circulation patterns and minimize adverse impacts to the physical and biological characteristics of nontidal wetlands. The soil conservation district will consider whether an alternate practice can accomplish the purpose with less adverse impact to a nontidal wetland, the feasibility of future nontidal wetland restoration, the cost and extent of mitigation among many other criteria.
Please look at the handout provided by the Maryland Department of Agriculture detailing all you need to know about obtaining your soil conservation and water quality plan: