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0 CHARLES COUNTY NON-TIDAL WETLANDS PROGRAM Maryland Coastal Zone Management Program GB625.M3C5 1988 GB 625 .M3 COASTAL ZONE C5 INFORMATION CENTER 1988 Excerpt from County Progress Report 42 Work Approaches and Status of Special Projects Task 4. Non-Tidal Wetlands Program a Participation of staf f planners in Maryland Department of Natural Resources Non-Tidal Wetlands Identification and Delinia- tion Workshop. b. Review of policy option papers and draft Legislation prepared by Non-Tidal Wetlands Task Force. Develop a Wetlands Protection Program for Charles County in close cooperation with State's draft legislation. C. Recommend modification of or additions to existing project review procedures, and coordination with permitting agencies. UPDATE: The Environmental Planner I has completed the 3--day training workshop conducted by D.N.R. (agenda attached). The Chief of Comprehensive Planning and Environmental Planner III will also be attending the workshop within the coming year. Charles County has included a "Wetland Protection Element" in it's Critical Area Program as required by the legislation. The proposed Program has not been approved or adopted as of this date. A public hearing is scheduled for program approval by the County Commissioners on August 3, 1988. A program for protection of non-tidal wetlands outside of the Critical Area will be developed in conjunction with State level policy decisions. U.S. Department of Interior maps (1" = 20001) are@. to bC- for- matted for compatibility with Charles County Tax Maps. Two sets of 90 clear polyester film overlays are being ordered to aid in the identification, and assessment of non-tidal wetland areas. Work Product: Wetland Protection Program Non-Tidal Wetland Maps 2 Maryland Department of Natural Resources Water Resources Administration Tawes State Office Building P714, f Ai_ Annapolis, Maryland 21401 Telephone: 974-3841 eo Torrey C. BroIwn, M.D. William Donald Schaefer 47 Secretary Governor ro/- i)i James W. Dunmyer r e6(ft Ved Director April 7, 1988 MEMORANDUM TO: Distribution FROM: Denise H. Clearwater Non-Tidal Wetlands Division SUBJ: Non-Tidal Wetlands Identification and Delineation Workshop In 1988 the Non-Tidal Wetlands Division will offer four (4) three-day training workships for the identification and delineation of non-tidal wetlands. Topics will .include the U. S. Fish and Wildlife Service classification system, hydric soils, hydrology and vegetation. Field sessions will be held each day of the workshop. Regulatory programs and suggestions for project planning will also be discussed'. The workshops will be of special interest to persons working in the Critical Are"a. field. Attendees should bring their own lunches and wear appropriate clothes for the Dates for the workshops are: June 21-2 3, 1988 Cig_ @, August 23-25, 1988 All workshops will be held at the Jug Bay Wetlands Sanctuar .y in Anne Arundel County (see map). NOTE: Class size is limited. Preference will be given to local government personnel. Please return the attached registration form indicating the names and addresses of persons whowish to attend, the date of the desired workshop, and an alternate date. If neither workshop is available, you will not be placed on a waiting list or ,registered for any other session unless requested. No phone calls please. DHC: Enclosmuwres: (4) DNR TTY for Deaf: 301-974-3683 -7 AGFNDA Day 1. -9: 00 Introduction 9:15 Slide Show "Maryland Non-tidal Wetlands" 9:30 U.S Fish and Wildlife Service Classifica- tion System 10:00 Coffee Break 10:15 Wetland Soils, Hydroloay, andLandscape 11:15 Water Regimes 11:45 Information Sources 12:15 Lunch 1:15 Field Session Soils 3:00 Adjourn Day 2 9:00 Wetland Vegetation 1) Definition (hydrophyfes) 2) Plant Morphology 10.:15 Coffee'Break p 10:30 Information Sources 10:45 Plant Key Exercise 1*2.: 00 Lunch 1:00 Field Exercise 3:00 Adjourn Day 3 low 9:00 Field Exercise 12: 00' Lunch 1:00 Del*lneation Review 2:00 Wetland Regulatory Agencies 3:00 Project Review 4:00 Adjourn: Excerpt from County Progress Report*#3 Work Approaches and Status Of Special Projects TASK 4: NON-TIDAL WETEANDS PROGRAM a. Participation by staff planners in Maryland Department of Natural Resources Non-Tidal Wetlands Identification and Delineation Workshop. b. Review of policy option papers and draft Legislation-prepared by Non-Tidal Wetlands Task Force. Develop a Wetlands Protection Program for Charles County in close cooperation with State's draft legislation. C. Recommend modification of or additions to existing project review procedures, and coordination with permitting agencies. UPDATE: Task 4a. Completed in the second quarter of FY 188. Task 4b. A review of the Non-Tidal Wetlands Policy Options paper is included with this report.__A_program for protection of Non-Tidal.Wetlands outside-of the Critical Area will be developed in conjunction with State level policy decisions once those choices have been made. Charles County has included a "Wetlands Protection Element" in its Critical Area Program as required by the legislation. The program has not been approved or adopted as of this date. The final draft of the County's Critical Area Program was sent to the Critical Area Commission for their review and approval on September 15, 1988. Charles County was asked to revise some sections of the draft while the Commission continued to debate another section. At this date it is not known when the Commission will grant final approval and allow the County Commissioners to adopt the plan. Task 4c. The Senior Environmental Planner has developed a Non-Tidal.Wetlands Notification Process that contains the policies and procedures for alerting the COE and DNR of applications for development in Charles County's non-tidal wetlands. A draft of this Policy / Procedure statement is included in this report. (CZM Third Quarter Report.) (TASK 4: NON-TIDAL WETLANDS PROGRAM, Continued) Work Product: Wetland Protection Program:' Forthcoming. Non-Tidal Wetland Maps: We are waiting for the U.S. Fish and Wildlife Service to complete their updating of these maps. We will then proceed with copies at 1:600 scale. (CZM Third Quarter Report) POLICY PROCEDURE Environmental Planning Division of Comprehensive Planning Subiect: NON-TIDAL WETLANDS NOTIFICATION PROCESS 1.0 INTRODUCTION & PURPOSE To establish and identify the steps of a standardized process for notifying the Army Corps of Engineers, (herein after referred to as COE) , and the State of Maryland Department of Natural Resources, (herein after referred to as DNR), that an application for Preliminary Subdivision Plan, or Site Development Plan, containing non-tidal wetlands has been submitted to the Department of Planning and Zoning of Charles County, MD. 2.0 POLICY The Senior Environmental Planner or designated staff member shall submit a Wetlands Notification Form (see attached) to the COE River Basins Permits Section and DNR Standards, Regulations, and Policy Development Section within 10 days from receipt. A copy of this action shall be transmitted to the Applicant or Property Owner and the Chief of Current Planning. 3.0 PROCEDURE / PROCESS 3.1 APPLICANT'S PACKAGE a. The Environmental Planning Division shall receive a copy of all Site Development Plans and Preliminary Subdivision Plans from the Current Planning Division for Non-Tidal Wetland review within 5 days ofreceipt. 3.2 REVIEW PROCESS a. Review the National Wetlands Inventory Maps for identification of the presence of non-tidal wetlands. b. Review Charles County's Soil Survey prepared by the Soil Conservation Service for identifying the presence of hydric soils on site. c. Review the Flood Insurance Rate Map, (herein after referred to as FIRM) for Charles County, MD. and determine if the site lies within a 100-year floodplain. d. The Environmental Planning Division shall complete a Wetlands Notification Form for submittal to COE and DNR if Non-Tidal Wetlands are noted through re- view. The Chief of Current Planning shall receive a copy.of this form or a memo noting no wetlands within 10 days of receipt. CHARLES COUNTY GOVERNMENT Department of Planning and Zoning JACQUELYN M. MAGNESS, Director 1656 To: Cheryl Smith, Chief JoAnn Watson, Chief River Basin Pe-rmits Section Standards, Regulations, Army Corps of Engineers and Policy Development Section Office of Envr. Programs FROM: John F. Mudd, Chief Development Review Section RE: Subdivision Name: Subdivision No.: Preliminary Site Development Plan Name: Preliminary Site Development Plan No.: Owner: Engineer: Date Submitted: The Department of Planning and Zoning is hereby notifying the-Corps of Engineers and the Maryland Office of Environmental Programs that it has received the above referenced plan for review. Based on the evidence below, this Department has in- formed the engineer that a Corps Permit and a State of Maryland Water Quality Certification may be necessary because of the presence of wetlands on the site or because the development proposes to discharge fill material to waters of the United States. The engineer has been advised to contact your office. This Department would appreciate notification of the findings with respect to this development. Review of plan indicates hydric soils on site. Review of plan and/or other map source 'indicates streams on site which are proposed to be disturbed by develop- ment. Plan submitted with delineation of .100-year floodplain pursuant to Charles County Subdivision Regulations. , kbi cc* Post 0!yxe Box' E L a Pla t a. A fa,-yla nd 2!) 6 4 6,30,1) 645 0590 or 8710-3,,?:,0. Lx@ 15,901 EQUAL CP.DC)!@- MKKORANDUM TO: JACQUELYN M. MAGNESS, DIRECTOR OF PLANNING FROM:. PETER A. KUMBLE, ENVIRONMENTAL COORDINATOR RE: DNR NONTIDAL WETLANDS TASK FORCE REPORT DATE: AUGUST 20TH, 1988 COM4ENTS ON NONTIDAL WETLANDS TASK FORCE FINAL REPORT JULY, 1988 1) There should be an Abstract and/or an Executive Summary at the beginning of the report itself explaining the entire document. 2) 1 don't know why, but the Nontidal Wetlands.Task Force Report should not be located after the.Elements section of this report. The Elements were a byproduct of the Task Force Report, reflecting a supposed analytical thought 'process. The report's present format does not allow the reader to follow in,this process. 3) There needs to be a table of-contents. 4) The individual sections should be separate chapters with all the key issues of that chapter listed in outline format preceding the text. For example: Declaration of Public Policy a. Importance of Wetlands i . ............ ii . ............. b. Present Loss of this Resource c. Goals for Protection of Resource d. Intent of State . ................... . ................ BY following this format, the reader could quickly understand the scope each chapter (Element) before reading it. This would also greatly aid in under- standing the whole document. Not being a participant of the six month task force responsible for drafting this report, 'it is difficult to perceive all of the issues that it brought to light. With out an easy to understand outline of each chapter (Element), I find that I have to scan each paragraph, desperately searching for the true meaning and spiritual enlighten- ment. We live in an information society. I want it I clearly presented to me before I delve in. 5) Maybe each of the, twelve issues could be restated and clarified as Issues / Problems and Goals Objectives. 6) This might sound silly but the use of text graphics; bold face characters, paragraphs indentations, horizontal lines separating blocks of text, etc greatly help the reader to visually organize the thought process of the text. 7) The Mitigation Workc[roup Summary (no page number..) best accomplishes all that I have mentioned above. More importantly, it is, not overly verbose in its summation of items discussed. 8) Move the definition of terms to the back of the report. 9) Why were the separate workgroups formed? I am not myself questioning the action, I like it, but I am not told of why, when, how. Ironically, the info contained in the workgroup summary's told me more about what should be done to protect nontidal wetlands 'than does the Elements for Inclusion in a Nontidal Wetlands Statute. 2 Excerpt from County Progress Report Work Approaches and Status of Svecial Projects TASK 4: NON-TIDAL WETLANDS PROGRAM a. Participation by staf f planners in Maryland Department of Natural Resources, Non-Tidal Wetlands Identification and, Delineation Workshop. b. Review of policy, option papers and draft Legislation prepared by Non-Tidal Wetlands Task Force. Develop a Wetlands Protection Program for Charles County in cl-ose cooperation with State's draft legislation. C. Recommend modification of or additions to existing. project review procedures, and coordination with permitting agencies. UPDATE: Task 4a. Completed in the second quarter of FY 188. Task 4b. Completed in the third quarter of FY 188. Charles County is waiting for the.State Nontidal Wetlands Bill to be approved and made law before proceeding with any County interpretations of the DNR Bill. In the mean time, the County has outlined a program to protect Nontidal wetland floodpilains and Stream Valleys. This proposed program is entitled the "Stream Valley Protection and Land Acquisition Program." An outline of this program is program is included in this report. Task 4c. Completed in the third quarter of FY 188. Work Product: Wetland Protection Program: Stream Valley Protection Program outline included in this report. Copy of State Nontidal Wetlands Bill included in this report. Non-Tidal Wetland Maps: We are waiting f or the U. S. Fish and Wildlife Service to complete their updating of these maps. We will then proceed with copies at 1:600 scale. Modifications to Proiect Review Procedures: Included in 3rd Quarter Report. (CZM FY 88 Fourth Quarter Report) CHARLES COUNTY GOVERNMENT Depaitment of Planning and Zoning JACQUELYN M. MAGNESS, Director MATTAW OMAN FACILITIES PLAN EPA CONCERNS 6-55 0 Nontidal Wetland Protection Program Implementation STREAM VALLEY PROTECTION PROGRAM To promote the protection and regulation of stream valleys and adjacent non-tidal wetlands, Charles County shall establish a Stream VaUey Protection Program. Stream Valley planning areas will include but not be limited to the Zekiah Swamp, Gilbert Swamp, Mattawoman Creek, Nanjemoy Creek, Swanson Creek, Indian Creek, and Port Tobacco River. The implementation strategy %&rill be as follows: 1. Define and delineate Stream Valley Management Areas for the above mentioned drainage basins. .2. Formulate management objectives, protection plans, and implementation techniques for each stream valley. 3. Establish a local land trust, cooperative conservation easement program, or other formalized measures to acquire and protect sensitive stream valley habitat areas. 4. Outright purchase of lands that He within the 100 year floodplain utilizing County, state, federal, or private funding sources. In addition, Charles County proposes to prohibit any filling of lands that Ee within the 100 year floodplain as delineated on the USFWS floodplain map. Exception to this prohibition apply only towards special services such as but not limited to utilities and roads. 0 Charles County Growth Policies See Attached Charles County Comprehensive Plan Goals & Objectives Statement. 0 Charles County Land Use Control COMPREHENSIVEREZONING To implement the County's Growth Policies, the County will initiate a Comprehensive Rezoning in February, 1989. This process will take 14 - 16 months and will result in the adoption of new regulations affecting zoning, subdivision, and development practice. As currently conceived, the new regulation will include supplementary regulations and performance standards for: - Floodplains Environmentally assessment requirements - Stormwater management and sediment control - Resource protection standards - Stream valley protection Post Office Box "B" La Plata, Maryland 20646 (301) 64S-OS90 or 870-3896 !-OUAL OPPORMN17T CWNTY CHARLES COUNTY GOVERNMENT Department of Planning and Zoning JACQUELYN M. MAGNESS, Director 1C.5b NON-TIDAL WETLANDS Key Issues: Mitigate the environmental effects of new development accommodated by expansion of the Mattawoman Waste Water Treatment Plant. Provide consistency of environmental regulations to ease understanding by the public, and administration by County Government. Avoid duplication of State and Federal programs while applying those programs in Charles County. Cost of environmental protection: 0 public 0 private Availability of reliable data on the location, extent, and type of wetlands. '645 b Post Office Box "B La Plata, Maryland 20646 (301) 645-0590 or 87"896 EQUAL OPPORMN17Y COU1,7Y NON-TIDAL WETLANDS IMPLEMENTATION TECHNIQUES PROS & CONS OF VARIOUS IMPLEMENTATION PROGRAMS by Peter Kumble A. Vegetative Buffer To Wetlands Areas of Mattawoman & Zekiah PROS - This approach would help to reduce to reduce nutrient export from non-point source pollution. Similar to MDE's Vegetative Filter Strip Program. This is a good first step. CONS - Although the intent here may be good, a 25' Vegetative Buffer may too simplistic an approach to be considered as THE Non-tidal Wetlands Protection Program for Charles Co. In addition, the amount of land that would be affected by this action is unknown due to a lack of reliable data. B. Extend the Req's of CBCA Non-Tidal Wetland Program to Zeklah Swamp PROS - This suggestion was originally on the boards when the County was drafting its Critical Area Program. Would give the County some strong legal tools with which to protect these areas as well as gaining the support of all of the land owners who wanted the inclusion of Zekiah in Crit Area Regs'. CONS - Will require increased annual funding from CBCA to implement this additional program. If they will not up the we will need to secure other funding sources. C. Prohibit Filling in the 100 year Flood Plains of Mattawoman & Zekiah PROS - This program would be simple to administer because reliable data indicating the limits of the 100 year flood plain already exist. This program would cost the least to implement. A good idea, but again, as with option A., this should be an element of a total program rather than the program itself. CONS - Resistance form the development community. May be too simplistic. D. Adoption of a County Wide Non-Tidal Wetlands Program In Conformance w/ Proposed State Legislation. PROS - Not a bad idea if it were to be in tandem with CBCA regs' for Zekiah & Mattawoman. It could give the County control of its wetlands reg ulations. It could provide a single set of County wide regulations. Charles County will most likely have to do this once the State legislation is passed. CONS - One of the criticisms of the proposed State DNR Non-Tidal Wetlands Programs was that it replicated some existing State programs and confused which authority would be involved with enforcement. For a non-tidal wetlands program to work, it must be as stream lined (sorry) as possible; utilizing existing legislative programs. Problems with duplication of existing enforcement and legislation. E. Develop a Stream Valley Protection Program w/ Land Acquisition Program PROS - A great idea. This could be implemented with a passive land acquisition program. CONS - This is the most costly option as it involves land acquisition and could/would involve some County $ for regulation/implementation. Why not again make this an element of a comprehensive non-tidal wetlands program that again applies CBCA legislation to County non-tidal Wetlands? PROS & CONS OF VARIOUS IMPLEMENTATION PROGRAMS by Peter Kumble A. Vegetative Buffer To Wetlands Areas of Mattawornan & Zekiah PROS - o Reduction of nutrient export (run off) o Similar To MDE's Vegetative Filter Strip Program o A good 1st step CONS - o May be too simplistic o Amount of affected land is unknown B. Extend the Req's of CBCA Nori-Tidal Wetland Program to Zekiah Swamp PROS - o Original idea of Critical Area Plan o Would give County strong legal tool for protection CONS - o Would require increased $ from CBCA C. Prohibit Filling in the 100 year Flood Pla ins of Mattawoman & Zekiah PROS - o Simple to administer o Existing data already exists o Least costly to implement CONS o Resistance from development community o May be too simplistic D. Adoption of a County Wide Non-Tidal Wetlands Program in Conformance with Prop osed State Legislation. PROS - o Would provide County-wide regulations CONS - o Would replicate existing proposed legislation o State may be enacting this anyway E. Develop a Stream Valley Protection Program w/ Land Acquisition Program PROS - o A great idea o Could be combined w/ Passive Land Acquisition plan CONS - o None, as this would protect land w/o $ to County It is the commissioners intention to adopt Alternate E, Stream Valley Protection Prozram and they are considering Alternate C, Prohibiting Filling Mi the 100 Year Flood fiaLn, with certain exceptions. These exceptions are: Essential services such as but not limited to: 0 Utilities 0 Roads 0 Parks, etc. MEMORANDUM TO: Jacquelyn Magness Director of Planning and Zoning FROM: Susan Webe@@d Chief of Sani ation, Public Works DATE: November 28, 1988 SUBJECT: MATTAWOMAN FACIILJTEES PLAN SLTPPLFAIENT Attached for your information is a copy of the public notice advertising the public meeting to discuss the subject supplement. Also attached is a copy of the revised facilities plan with the supplement or addendum included. Please note the Summary and Conclusions section of the addendum (which immediately follows Chapter 10 in the document). As we had disc ussed with the consultant who prepared this plan, five alternatives are shown that the County may use in implementing a program to protect non-tidal wetlands in the Zekiah and Mattawoman areas (See pages iv-v, of the Summary). I have today been informed by Bill Puhl, who is in charge of Construction Grants for MDE, that EPA has reviewed the document and has a request to make of the County. Bill Buhlmann of EPA advises that his organization will have an easier time approving the document if the County picks one mitigation alternative which it will follow. He suggests the County needs to be more firm in the language of this facilities plan. He also suggests that the County's mitigation choice be read into the record at the public meeting on December 7, 1988. This is to ask concerning the status of the County's Critical Area Plan and as to whether you think the County will be in a position to choose one wetlands mitigation alternative in the near future. Please advise as soon as possible. Mr. Puhl has asked that I let him know in advance of the public meeting if possible. Thank you for your help in this matter. SW:M Attach.(2) pe: R. Hancock S. Koczerzuk A. Martin A. Iglehart THOMAS MAC MIDDLETON. MURRAY D. LEVY MELVIN S. BRIDGETT NANCY J. SEFTON COUNrY ACWiNISTRATOA (garninis5ionr r5 af T hnrles CountV P, 0. BOX B LA PLATA, MARYLAND 20646 (301) 645-0550 OR D.C. 870-3000 PUBLIC NOTICE NOTE: THIS NOTICE SUPERCEDES ANY PREVIOUS PUBLIC NOTICE ON THIS PROJECT The Charles County Commissioners through the Department of Public Works has prepared Supplement No. I to the 201 Facilities Plan for the Mattawoman Basin Area. A draft of that Plan is complete and will be on display as of November 16, 1988 at the County libraries in La Plata, Indian Head, and Waldorf, and at the Department of Public Works located in the County Government Building in La Plata, Maryland. Charles County plans to expand the Mattawoman Wastewater Treatment Facility to a capacity of 15 million gallons per day and to add phosphorus removal facilities which will aid in statewide efforts to clean up the Chesapeake Bay. The actual planning area boundaries set by the State of Maryland include the entire Mattawoman Creek Basin, Waldorf, St. Charles, the Town of Indian Head, and a portion of Prince George's County. In order for citiiens, concerned regulatory agencies, and any interested parties to hear a summary of alternatives and to express their viewpoint on this subject, a Public Meeting will be held on Wednesday, December 7, 1988 at 7:00 p.m. in the Auditorium for the Charles County Government Building, in La Plata, Maryland. Written comments or oral presentations can be presented at this meeting. All public comments will be given due consideration. Statements can be'mailed in advance to the address shown below. For more information contact: Susan Weber Charles Co. Dept. of Public Works P.O. Box 1630 La Plata, Maryland 20646 (301) 645-0610 or 870-3935 COUNTY COMMISISONERS OF CHARLES COUNTY, MARYLAND THOMAS MAC MIDDLETON PRESIDENT TO BE PUBLISHED IN THE MARYLAND INDEPENDENT, AND TIMES CRESCENT ON NOVEMBER 16th., 23rd,30th and DECE'HBER 7th, 1988 EOU^L OPPORTUNITY COUNTY Chesapeake Bay Commission ALL A legt3latwe COMM15510n 5L7vtng Mar.vland, Penns-.Ivania and VjTgtnia. Non-Tidal Wetlands Protection Programs for the Chesapeake Bay Region:. A Review and Comparison T he Chesapeake Bay Commission was formed in order to assist the legislatures of Virginia, Maryland and Pennsylvania in evaluating and responding to problems of Bay-wide con- cem. Furthermore, the Commission encourages, whenever possible, cooperative, coordinated resource planning approaches among the states to ensure the best protection for the living resources of the Bay. The 1987 Chesapeake Bay Agreement calls for the formulation of a Bay-wide strategy to protect the non-tidal wetlands of the Chesapeake drainage basin. This challenge presents an un- usual opportunity. for each signatory to coordinate and, whenever appropriate and feasible, adopt a similar approach. This document revie@vs the approach that each state is currently considering or implement- ing. Based on our analysis, we have made a series of recommendations which, if adopted, will improve our region's non-tidal wetlands protection programs. We hope that each state will strongly consider these suggestions as they work toward the adoption or enhancement of state non-tidal wetlands protection strategies. Introduction The past thirty years have seen a remarkable in- Their importance to wildlife, water quality and 'crease, both in this country and abroad, in the flood control was largely unappreciated, if not ig- general awareness of and appreciation for the en- nored. They were, instead, regarded as areas of vironment and its relation to the quality of human minimal utility ideally suited for bulkheadin& life. With this growing concern for the human ecol- dredging, draining and filling to create housing ogy has come.the clear realization of the need to developments, industrial sites, marginally produc- provide special protection for certain natural areas tive agricultural lands, waterfront property and which, because of their fragile nature or even public landfills. Wetlands were used for these phys iographic position, are particularly vulnerable purposes with little concern for or knowledge of to the development pressures imposed upon them. their impact on broader water resource systems. One area which has received a great deal of atten- Fortunately, this "wetfands as wastelands" tion in this regard is our nation's wetlands. This has philosophy has, in large measure, been replaced by been particularly apparent in the Chesapeake Bay a more enlightened view of wetlands as one of the watershed. most diverse and productive ecosystems on earth. Historically, wetlands and marsheswere viewed In the Chesapeake Bay region, we are beginning to by many as unsightly nuisances serving primarily recognize wetlands as vital to the well-being of the as breeding grounds for snakes and mosquitoes. Bay and its living resources. They are now recog- ISStES AD ACTIOLks 60 West Street, Suite 200 ^nnapohs, Maryland 2 140 1 (301) 263- 3420 -2- nized as important natural resources not only to commitments, the signatories are charged with citizens living in close proximity to them, but also providing incentives, technical assistance and to others living outside the region who consume or guidance to local governments to activetv en- utilize products produced within or dependent courage them to incorporate the protection oi tidal upon them. and non-tidal wetlands and other fragile areas into If left undisturbed, the wetlands of the the growth-related management process. Chesa peake- those marshes, mudflats, swamps The Chesapeake Bay Commission, and manv and bogs lying at the interface of the land and other groups, have long advocated the develop- water-play an important role in the maintenance ment of appropriate protection and enhancement of surface water quality.and the provision of ex- programs for inland non-tidal wetlands. As a sig- traordinarily diverse fish and wildlife habitat. Wet- natory to the Agreement, the Chesapeake Bay Com- lands provide many benefits including, among mission believes the time has come to take action others: and develop strong state non-tidal wetlands protec- 1. habitat for waterfowl and other wildlife tion programs. The Bay-wide policy for the protec- 2. pollution control tion of tidal and non-bdal wetlands is currently 3. flood damage protection being developed, and Maryland, Virginia and 4. erosion control Pennsylvania are each re-evaluating current inland, 5. natural products for human use non-tidal wetlands protection programs in light of 6. food production and aquatic productivity this commitment. Delaware, while not a signatory 7. habitat for rare and endangered species to the Bay Agreement, has also made a commitment 8. recreation and aesthetics to bolster the state's non-tidal wetlands protection 9. water supply programs. 10, education and research Created, or "artificial", wetlands, because of The Nature of Non-tidal Wetlands in their buffering and assimilative capacities, are now the Chesapeake Bay Region used experimentally in innovative wastewater and In June of 1987, the Chesapeake Bay Wetlands industrial discharge treatment in many areas System received world recognition by being throughout the country. Wetlands are also ex- nominated for listing as "Netlands of Internation- pected to be incorporated as a major element of al Importance Especially as Waterfowl Habitar, comprehensive nonpoint source pollution control under a 45-nation treaty. The Chesapeake Bay Wet- programs under Section 319 of the Water Quality lands system was presented as one of the most im- Act of 1987. These factors, coupled with a renewed portant wetland areas in the United States because interest in natural resource conservation, have com- of its value as habitat for endangered species and bined to focus the attention of scientists, legislators over a million waterfowl, and for finfish and and citizens upon the protection of coastal, es- shellfish productivity recreation, and commerce. tuarine and inland wetlands. Inland wetlands in the Chesapeake Bay water- Massachusetts, in 1963, was the first state to shed are generally freshwater marshes, swamps adopt a statute providing explicit regulatory and bogs that are largely non-tidal. They usually protection for coastal wetlands. Since that time, al- occur on floodplains along rivers and streams, most all coastal states have adopted legislative or along the margins of lakes and ponds, and in iso- regulatory programs designed to protect marine lated depressions in the upland. Three types are and estuarine wetlands. Maryland, Virginia and most common: (1) emergent wetlands, (2)shrub Delaware have had successful tidal wetlands wetlands, and (3) forested wetlands. Forested wet- protection. programs in place since the early -1970's. lands are, by far, the most common type. Red There are no tidal wetlands within the Chesapeake maple, silver maple, black gum, and willow oak are Bay drainage basin in Pennsylvania. among the cornmon trees in forested wetlands. Bald To date, inland non-tidal wetlands have not been cypress is most abundant in southeastern Virginia, afforded the same degree of attention or protection. but is also common in eastern Maryland. Common- The leaders of the Chesapeake Bay clean-up ly found shrubs include buttonbush, swamp rose program recognized this shortfall and agreed to and silky dogwood. Meadowsweet and leatherleaf rectify the problem. The 1987 Chesapeake Bay are more typical of shrub swamps at higher eleva- Agreement specifically calls for the development of tions in the Appalachian HgWands of Pennsyl- programs to improve the protection of non-tidal vania and western Maryland. Emergent wetlands wetlands. Under the Living Resources conurdt- are dominated by a number of herbaceous plants ments, the signatories agreed to develop, by including broad-leaved cattail, canary grass, soft December 1988, a Bay-wide policy for the protec- rush, sedges and smartweeds. tion of tidal and non-tidal wetlands. Within thecon- text of the Population Growth and Development Chesapeake B.0" Commission -3- Status and Recent Trends of Wetlands 1. Agricu I ture-d raining and clearing wetlands in the Watershed forcrop production. The most recent comprehensive information on 2. Pond and lake construction-impounding or the current status.and recent trends in wetlands for excavatingand flooding wetlands for water supp)y, the five-state Mid-Atlantic region is found in a flood protection, recreation, and other purposes. study conducted jointly by the U.S. Fish and 3. Urban development-filling wetlands for Wildlife Service and the Environmental Protection houses, industrial facilities, ports, commercial Agency as one element of the National Wetlands In- buildings, highways, waste disposal sites, airports, ventory. Using a statistical sampling design, re- and other purposes. searchers determined wetlands changes for the 4. Other development-primarily dredging or region between the mid-1950's and the late 1970's. channelizing wetlands for navigation and flood The five-state region had slightly more than two protection which often facilitates timber harvest, or millionacresof wetlandsin thelate 1970's. Virginia, wetland conversion to farmland and urban land; with nearly half (46%) of the region's wetlands, had silviculture; peat, coal, sand and gravel mining; and the greatest wetland acreage among the states, fol- altering natural drainage patterns. lowed by Pennsylvania (22%) and Maryland (19%). 5. Pollution-degrading the quality of wetlands The remainder of the wetlands in the region were by direct or indirect discharge of various materials found in Delaware (9%) and mountainous West including pesticides, herbicides, other chemicals, Virginia 0%). About 1.2 million acres of wetlands sediment, domestic sewage, and agricultural were located within the Chesapeake Bay drainage wastes. area. Over 75% of these wetlands are inland wet- In addition to these man-induced changes, na-. lands and about 20% are coastal wetlands. ture also plays a significant role in changing the Between the mid-1950's and the late 197(Ys, the abundance, function and distribution of our wet- region experienced net losses in its most important lands. Natural forces such as the subsidence of wetland "s (estuarine and palustrine vegetated coastal areas related to rising sea level, erosion and wetlands) and substantial net gains in ponds and accretion, natural succession from one wetland larger water bodies (lakes and reservoirs). Inland type to another, droughts and other climatic vari- vegetated wetlands suffered the greatest net losses ables can all contribute to the changing character of during the period, amounting to almost 133,000 our wetlands resource. In some instances these acres, or about seven percent of those present in the events can be managed and their impacts mid-1950's. Virginia experienced the greatest ac- ameliorated but they cannot be controlled in any tual losses of inland vegetated wetlands (57,000 absolute sense. These natural forces, however, are acres), while Delaware lost the highest percentage constantly fluctuating and tend to equalize one of non-tidal wetlands (2111o of their resource or another; they do not contribute significantly to the 38,000 acres). Agricultural conversion of these wet- overall resource loss. The activities of man, on the other hand, have continued without redress, result- lands and associated channelization projects were ing in a cumulative and accelerating loss of this the major reasons for the declines, accounting for valuable and finite resource. nearly 60% of the losses. The magnitude and prin- cipal causes of vegetated non-tidal wetlands losses Existing State and Federal Non-tidal on a Bay-wide basis, and for each of the states, is Wetlands Protection Efforts summarized by the chart on the following page. Relatively few states have adopted regulatory -Summary of Recent Wetland Trends programs designed explicitly for the protection of I It is clear that significant wetland losses have oc- non-tidal wetlands. These states include, for in- curred in the near recent past in theChesapeake Ba stance, Massachusetts, Connecticut, Rhode Island, y Minnesota, Michigan, New Hampshire, New York region. Between the rnid-1950's and the late 1970's and NewJersey. Some states (e.g., New Hampshire seven percent of the inland vegetative wetlands and Rhode Island) regulate both coastal and inland within the Chesapeake Bay watershed were lost. wetlands through State permit requirements. This trend continues to this day. Others, such as New York, Connecticut and Unfortunately, many of man's activities are Michigan, establish standards to guide locally-ad- physically and/or functionally destructive to wet- ministered wetlands protection programs and lands. Some actions do, however, create wetlands. directly regulate areas only in the event of local in- Construction of farm ponds in upland areas, for in- action. stance, may increase wetlands acreage. Re�toration The dominant force in the non-tidal wetlands of previously drained wetlands can also be benefi- regulatory framework, to date, has been the federal cial. The major man-induced causes of non-tidal government. The history of federal involvement in wetlands change in the Chesapeake Bay watershed the wetlands regulatory scheme has been long and are as follows: Chesapeake Bay Commission L;auses oi inlana vegetatea Wetland Losses Lakes 4% Urban Ponds 13% In the Chesapeake Watershed % About 1.2 million acres of wetlands, more than 75% of which are inland 25 wetlands, are found within the Chesapeake Bay drainage area which encom- passes parts of six states. Annual losses of coastal and inland vegetated wetlands between the mid-1950's and the late 1970's averaged more than 2800 29% acres. Inland vegetated wetlands declined by 6%. Agriculture and other devel- 2901o opment, mainly channelization related to farming, were responsible for nearly Other 60% of the loss. Urban 3% Development Agriculture Ponds In Virginia 7% Virginia has slightly more than one rrillion acres of wetlands, more than 75% Agriculture of which are inland wetlands. Between 1956 and 1977, over 63,000 acres of Lakes coastal and inland vegetated wetlands were lost. Inland forested wedands 18% were most threatened, experiencing a 9% loss in 21 years. Direct conversion of 45% wetlands to cropland accounted for almost one-half of the loss of inland vegetated wetlands. 27% Dher Wetlands 1% Other Urban Agriculture Development 8% In Maryland 31% Maryland possesses nearly 440,000 acres of wetlands, about two-thirds of which are inland wetlands. Between 1955 and 1978, about 24,000 acres of 27% coastal and inland wetlands were lost. Inland vegetated wetlands decreased by Ponds 6%. Other development and agriculture caused nearly two-thirds of the recent and Lakes 33% loss. Lakes Other Development In Pennsylvania Urban 8% Ponds Nearly 500,000 acres of wetlands are present in Pennsylvania. Forested and 14% shrub wetlands comprise slightly less than 75% of the total. The state experi- 38% enced a net loss of nearly 28,000 acres of inland vegetated wetlands between 1956 and 1979 for a 6% loss. Pond construction was the greatest cause of Agriculture 17% vegetated wetlands loss in Pennsylvania. Other development, primarily chan- nelization and peat mining, was responsible for nearly a quarter of the recent 23% losses. Ponds and Lakes Other Wetlan .ds 1% Other Develo Ipment Urban 5% In Delaware 120/6 About 17%, or roughly 216,000 acres of the state's land area is wetland. Between 1955 and 1981, about 42,000 acres of coastal and inland vegetated wetlands were lost, the vast majority being inland wedands. Forested wetlands 54% alone decreased by about 17%. Other development, mainly channelization and Agriculture 28% ditching projects related to agriculture, were responsible for over 50% of the losses. Other Development Source: U.S. Fish and WdLilifie Service. Mid-AtLoAtic Wetlands, A DisappearUW Natural Treasure U , 31)Amr@ Tn 's lopment ,Jkes )fX h, Chesapeake Bay Comm ission controversial. Section 404 of the Federal Water Pol- resource is totally unprotected at the state level. In lution ContTol Act of 1972 requires that permits be some states, inland wetlands regulation is a com- obtained from the U.S. ArmyCorpsof Engineers for ponent or an indirect result of broader state the discharge of dredged and fill materials into the regulatory efforts applying to state waters, "waters of the United States". shorelands, floodplains, wild and scenic rivers, or In keeping with the historical focus of the Corps other areas. State iloodplain regulations or state on issues pertaining primarily to navigation, this standards for local regulation, for example, have Section was at first interpreted narrowly by the been adopted in more than 30 states. While protec- agency to apply only to traditionally navigable tion of ecological values is rarely a specific objective waters. The judiciary, however, has consistently of these programs, a significant measure of wet- and significantly broadened the interpretation of lands protection may in fact be achieved by the very "waters of the United States" to include adjacent restrictive controls typically applied in floodway wetlands and other inter-related components of the areas. ecosystem. Non-regulatory wetland protection efforts may The U.S. Environmental Protection Agency is also provide a valuable supplement to regulatory also closely involved in the wetlands regulatory programs. All states have adopted wildlife protec- process, having developed, pursuant to Section 404 tion and conservation programs, many of which in- (b)(1) of the Clean Water Act, guidelines for the dis- volve the acquisition and management of wetland charge of dredged and fill material. The guidelines, resources. Some states and universities have ac- while not strictly binding, are given a great deal of quired wetlands for educational and scientific pur- weight, and decisions which do not adequately poses and many have authorized tax relief or consider the guidelines have been challenged in conservation easement programs for wetland and court. EPA also has an ultimate veto authority open space areas. within the regulatory framework. There are, then, many existing models for the Through the Fish and Wildlife Coordination Act State protection of non-tidal wetlands. Obviously, and National Environmental Policy Act (NEPA) the most appropriate model for a given state will guidelines, the U.S. Fish and Wildlife Service and depend on a combination of existing programs and the National Marine Fisheries Service also have political philosophies and the specific hydrologic, input to the decision-making process regarding geographic, econon-dc and biological characteristics wetlands. Thus, at least four federal agencies are of an area. The approach which has been taken, and routinely involved in the wetlands regulatory is evolving, in the Chesapeake Bay states incor- process. Each has differen't concerns and different porates a variety of different approaches. priorities and their legislative mandates are inter@ preted differently. Current Efforts Undertaken by the The EPA and the Corps differ on the functional Chesapeake Bay States definition of a wetland, giving rise to frequent juris- Each of the states within the Chesapeake Bay dictional disputes. Basic policy differences also region has recognized the importance of protecting exist in the areas of appropriate mitigation our remaining inland, non-tidal vvetland resource measures and the advanced identification of wet- and has taken steps toward developing a practical, lands of significance which should not be disturbed reasonable and enforceable solution. The matrix in under any circumstances. . this publication provides an overview of each To compound the issue in the Chesapeake Bay state's approach. in general terms. -region, thre Corps Districts exercise jurisdiction in Virginia adopted a tidal wetlands law in 1972 various areas of the Bay and decisions among the which includes a model wetlands protection or- Districts are notalways consistent, norare they able dinance for adoption and administration by local to review a given project proposal from a Bay-wide governments in Tidewater Virginia, an area which perspective. The. Chief of the Baltimore District of includes 46 cities, counties and towns essentially the Corps of Engineers, for instance, citing a lack of lying east of the fall line. The original Act has sub- sufficient resources, has recently requested and sequently been amended substantively to include received permission to no longer consider wooded protective measures for non-vegetated tidal wet- swamps as areas to be included within the purview lands and coastal primary sand dunes. A non-tidal of Section 404 of the Clean Water Act. This action, wetlands statute was drafted and introduced combined with the poorlydefined and overlapping during the 1988 Session of the Virginia General As- jurisdictional questions outlined above, serve only sembly, at least partially in response to the signing to underscore the need forstate action in the protec- of the 1987 Chesapeake Bay Agreement. The bill tion of non-tidal wetland areas. was heavily amended and eventually carried over The lack of an explicit state non-tidal wetlands for re-consideration during the 1989 legislative se's- protection act, however, does not mean that the sion. The bill is currently being studied by a legis- Chesapeake Bay Commission -6- lative Subcommittee. In addition, the Chesapeake conservation program covering all state held lands. Bay Preservation Act, adopted by the General As- Finally, the Executive Order calls for the creation of sembly in 1988, will require local goverrunents to a "Freshwater Wetlands Roundtable" that will be define and protect areas which may be of special responsible for the development of a program that importance to Chesapeake Bay water quality. Non- will furtherconserve Delaware's wetland resources tidal wetlands may well fall within the description on privately-held lands. of those areas requiring special protection. Maryland adopted its coastal wetlands protec A Comparison of the State Efforts tion law in 1970. It is essentially a centralized state The accompanying matrix represents an attempt permitting program. As a part of the State's to analyze, as clearly and succinctly as possible, the Chesapeake Bay Initiatives in 1984, a five-year current status of non-tidal wetlands protection cooperative program between the state and county programs in the Chesapeake Bay watershed. It also governments was established for the protection of includes the Chesapeake Bay (@onirrtission staff's non-tidal wetlands. Under the program, the state best assessment and recommendations of elements was to encourage and assist the voluntary efforts of which are necessary to afford adequate protection local governments in protecting these resources. A to the non-tidal wetland resources of the region. Non-tidal Wetlands Task Force was created in 1987 The wetlands protection programs in each of the in order to assist the State in the development of a jurisdictions are currently in a dynamic and evolv- policy and/or draft legislation by the end of June, ing state, each at various stages of modification or 1988. The deliberations of the Task Force resulted development. It is anticipated that the recommen- in the publication of a draft document entitled 'Tle- dations contained herein will be seriously con- ments for Possible Inclusion in a Non-tidal Wet- sidered by each state, and incorporated whenever lands Statute". That document is currently being and wherever possible. reviewed by the Office of the Governor. The criteria Staff has elected to include neighboring adopted pursuant to the Chesapeake Bay Critical Delaware in this analysis because of that state's Area Act also contain guidelines for the protection emerging interest in the Bay restoration and protec- of non-tidal wetlands within the 1000-foot Critical tion programs, and because its wetlands policy Area. review coincides closely with the efforts of the In Pennsylvania, wetlands protective measures member states of the Chesapeake Bay Commission. are authorized within the broader regulatory The signing of the Chesapeake Bay Agreement framework provided through the 1978 Dam Safety in December of 1987 lends an air of immediacy to and Encroachments Act. The Act regulates certain the importance of these ef forts. Because of the com- defined fill activities and encroachments into the mitments in the Agreement, and because the states waters of the state. 'Waters of the state" has been are currently following parallel tracks in the construed to include wetlands. The Pennsylvania development of non-tidal wetlands protection Department of Enviror-Lmental Resources is cur- programs, the Chesapeake Bay Commission has a rently undertaking a study to refine and strengthen unique opportunity-to ensure not only that the the Commonwealth's wetlands protection policy. resource is afforded the protection which it de- serves but also that the approach taken, in so far as Draft wetlands protection guidelines have been developed which clarify state policy, define those possible, represents a truly compatible and Bay- wetlands areas of "exceptional value" which are wide perspective toward resource protection. deserving of special protection, and generally tighten the state regulatory program. It is an- ticipated that these guidelines, when finalized, will be incorporated into state law. The 1973 Delaware Wetlands Act exempts most non-tidal wetlands from regulation, though some very large tracts of freshwater wetlands are protected from certain activities under the statute. The Governor, however, has recently declared his intention to develop a more comprehensive fresh- water wetlands conservation program for the state. An Executive Order issued in May of 1988 man- dates state agencies to minimize the adverse im- pacts of their activities on freshwater wetlands. Furthermore, Govemor Castle has directed the Department of Natural Resources and Environ- mental Control to develop a non-fidal wetlands Chesapeake Bay Commission Matrix - page 1 Chesapeake Bay Non-Tidal Wetlands Protection Programs An Analysis and Recommendations Status of Programs as of August 26,1988 Category Virginia Maryland Pennsylvania Delaware Chesapeake Bay Commission F Staff Recommendations 1. Legislation - Introduced in 1988. Carried Proposed for introduction No specific statute. Wetlands 1973 Wetlands Act, Chapter In keeping with the 1987 Enacted? (if so, over for vote in 1989 Session. during 1989 Session. provisions contained in Dam 66, Title 7, Delaware Code. Chesapeake Bay Agreement, when) Safety and Encroachments Note: The Act exempts most each state should enact or Act (1978). non-tidal wetlands, amend its non-tidal wetland protection legislation during the 1989 legislative session in order to adhere to the commitments made in the Bay-wide wetlands policy. 2. Overall Goals To regulate activities which *Work toward a net resource Statute and regulations have Current law includes the At a minimum, the goals and may "adversely affect" non- gain in non-tidal wetlands no specific goals for wetlands overall goal to preserve and policies of a state's non-tidal tidal wetlands. "Adversely acreage and function over protection. New Department protect the productive wet- wetlands program should be affect" means to substantial- present conditions. of Environmental Resources lands of the state consistent clearly defined and explicitly ly impair the ability of a wet- Wetlands Protection Policy, with the historic right of stated, and shoWd focus oil land to function for water currently being developed, private ownership of lands. preventing further loss and quality protection, flood does speak specifically to this Under May 26, 1988 Execu- degradation (eliminating all un- protection, or aquifer point. tive Order 56 Freshwater necessary losses) of the state's recharge. Wetlands, each state agency non-tidal wetlands resources. must minimize the adverse The overall goal should be to effects and conserve and en- work toward a net resource hance the values and func- gain. tions of Freshwater Wetlands in carrying out the Agency's responsibilities. Develop a Freshwater Wetlands conser- vation program. (A) The Department of Natural Resources and Environmen- tal Control will develop a program for State held lands. (B) A Freshwater Wetlands Roundtable appointed by the Governor will develop a program for privately held lands. Matrix - page 2 Category Virginia Maryland Pennsylvainla Delaware Chesapeake Bay Commission Staff Recommendations 3. Geographical Area Tidewater Virginia as Statewide Statewide Statewide but definition ex- The non-tidal wetlands pro- defined by Code. This in- emPts most non-ticlal wet- gram should be applied cludes 46 cities, counties and lands. statewide toall wetlands greater towns, basically comprising than one-half acre. that area which is cast of the fall line. 4. Definition of a Any area adjacent to state Area inundated or saturated Area inundated or saturated Current law includes those At a minimum, the definition Non-Tidal waters, or isolated areas by surface water or ground by surface or ground water it areas not used for agricul- should include all those areas Wetland larger than one acre which water at a frequency and a frequency and duration tural purposes containing that are inundated or saturated has hydric soils, is recurrent- duration sufficient to sup- sufficient to support, and 400 acres or more of con- by surface or ground water at a ly inundated or saturated port, and normally does sup- normally does support, tiguous non-tidal swamp, frequency and duration suffi- and exhibits hydrology as ex- port, hydrophytic vegeta- prevalence of vegetation bog, muck or marsh ex- cient to support, and that under pressed in U.S. Army Corps tion; Department of Natural adapted for life in saturated clusive of narrow Stream val- normal circumstances do sup- of Engineers Wetlands Resources to use hydrology, soils; also defines "important leys. Under Executive Order port, a prevalence of vegetation Delineation Manual, and soils and vegetation ap- wetlands". 56, the Freshwater Wetlands typically adapted for life in supports a prevalence of. proach contained in EPA Roundtable must include a saturated soil conditions. This vegetation ident ,ified as wet- Wetlands Identification and definition of a non-tidal w&- definition generally includes lands by the U.S. Fish and Delineation Manual; also land in their report to the swamps, marshes, bogs, and Wildlife Service. Non-tidal defines "non-tidal wetlands Governor June 1, 1989. similar areas and is used by the wetlands may include but are of special State concern". U.S. Army Corps of Engineers not limited to bogs, marshes, and the Environmental Protec- and swamps, but shall not in- tion Agency when implement- clude backwater areas unin- ing the Clean Water Act, Section tentionally created by 404 program. A non-tidal wet- roadway fills. Areas regu- land protection programshould lated under the tidal wet- also include definitions for lands statute are specifically "non-tidal wetlands of special excluded from the definition. State concern" and '150IMed wetlands". 5. Timellne@s) for Carryover legislation so Not specified N/A Freshwater Wetlands Con- Legisla 'tion should be enacted Adopting timelines are out of date. In- servation Program recom- during the 1989 General As- Program. tent: Develop forestry best menclation due to Governor sembly sessions. Corresponding management practices by by J u ne 1, 1989. regulations should be promul- April I of the year following gated byJuly, 1990; mapsand in- passage; certification for ex- ventory information should be emptions by January I of the finalized byDLcemb#-,r 1990;and next year. local programs should be in place or assumed by July, 1991. Matrix - page 3 Category Virginia Maryland Pennsylianla Delaware Chesapeake Bay Commission Staff Recommendations 6. Inventory/Maps USFWS National Wetlands Department of Natural USFWS National Wetlands Interim U.S. Fish and The USFWS National Wetlands (source, Inventory Maps complete. Resources to prepare guid- Inventory Maps Wildlife Service's National Inventory maps at a scale of Supplemental soil maps ance maps of non-tidal wet- Wetlands Inventory and 1":24,00(Y are available to all Bay availability, available through Division of lands at scale no less than Maps will be used. Scale states and can be used to identify scale, Soil and Water Conservation 1":2000'within 180daysof ef- 1":24,00(Y. most areas 1.5-2 acres or greater application) by 1990. VIRGIS maps of fective date; may be based on in size. Within or adjacent it) Tidewater and USFWS maps USFWS National Wetlands these general vicinities, field in- will also be utilized. Inventory Maps. spection must be used as the final and determinative factor. Overall, the inventory and maps must be at an appropriate scale to allow adequate inspLction and enforcement in wetlands of one-half acre or larger in size. 7. State Program or State program with option State program with delega- State program State program The program should be state Overview? for local administration tion to authorized locals; lo- developed at the state level with through state certification cals maybe more strict. Local prowisions for local (county, city procedure. State may rescind jurisdiction may amend an or town) assumption of the local administration if local approved regulation with program through a certification fails to remain in compliance Departmental approval (no process. The local jurisdiction, with state requirements. public review provisions). with proper public review, State may rescind local should be permitted to imple- delegatioh if local fails to ment more stringent protection remain in compliance with guidelines. Failure of the coun- State requirements. ty, cityor town to rernain incoin- pliancewith the rLquirementsol the state program should result in the state's rescission of delegation. 8. Lead Agency Department of Forestry and Department of Natural Bureau of Dams and Water- Department of Natural To be determined by each juris- Department of Consvi-vation Resources way Maria Y -nient, Depart- Resources and Environinen- diction. and Historic Resources. ment of Evironmental tal Control Resources 9. Buffer None sp, -d though best 25 feet; may be expanded by 300 feet for "important wet- Current law none Programsshould includea buff- Requirements management practices could Department of Natural lands". Sussex County has a 20 foot er requirement to ensure that require the establishment of Resources or local jurisdic- 100 feet (waivable) for wild wetland buffer requirement non-tidal wetlands are buffers. tion based on slope, soils, ad- and scenic rivers, federal from tidal wetlands. protected from adj@icent upland jacent development, etc. wilderness areas, rare and land-use practices. Scientili, endangered species habitat. evidence suggests that a bullei of 00- 1 W feet is necessa ry it) en - sureadequate protectimi, x, Matrix - page 4 Category Virginia Maryland Pennsylvinia Delaware Chesapeake Bay Commission' Staff Recommendations 10. Agricultural Agricultural activities that Permit not required for (1) ilc- Statute addressing discharge Agricultural lands exempt Legislation should include tilt, Components may adversely affect wet- tivities in accordance with of fill material spocificallyex- under current laws; grazing, creation of an Advisory lands to use best manage- public drainage regulation; cludes "plowing, cultivating, haying, hunting and trap- Board/Task Force to establish m 'ent practices to be (2) existing activities where seeding and harvesting for ping are permissible uses. Best Management Practices for promulgated by Depart- flow capacity not increased; the production of food fiber agricultural activities to be con- ment. (3) new activities involving and forest products". ducted in close proximity to regulated activities to be in non-tidal wetlands. The Task accordance with approved Force should be comprised of Soil Conservation and Water representatives from the Quality Plan having non- forestry, agriculture and en- tidal wetlands management vironmental community as well component. Other activities as the lead state agencies. It would require approval should he charged with the con- through regulations yet to be tinuing oversight of practices af- determined. fecting non-tidal wetlands with particular attention to cumula- tive, sub-watershed impacts. Best management practices developed by the Task Force should be mandatory for all non-exempted activities. Per- mits should be re-quired for ill new conversions of areas with no historical use within a reasonable timeframe (e.g. 10 yea rs) to be determined by each jurisdiction. 11. Forestry Silvicultural activities to be Practices in areas larger than Statute addressing discharge Current law iOO acres or Same as Agriculture. Components allowed provided that best 5000 square feet and which of fill material specifically ex- more are included in statute. management practices are require an erosion and sedi- cludes "plowing, cultivating, implemented. These best ment control plan must in- seeding and harvesting for management practices shall corporate non-tidal wetlands the production of food fiber be promulgated by the management component and forest products". Department of Forestry. into plan; non-tidal wetlands component of plan not yet defined; plan must specify best management practices and forestry procedures to protect ecological integrityof non-tidal wetlands. Other ac- tivities would require ap- proval through regulations yet to be determined. Matrix - page 5 Category Virginia Maryland Pennsylvania Delaware Chesapeake Bay Commission Staff Recommendations 12. Relationship to Same geographic area. Dif- Both administered by N/ A. Only tidal wetlands are Current non-tidal wetlands Tidal and non-tidal wetlands Tidal Wetlands ferent agencies and permits. Department of Natural in Delaware River Basin. program is part of the Wet- should be afforded similar levels No overlap in programs or Resources. Tidal wetlands lands Act of 1973 which is of protection and adequate in- Protection requirement for cross- specifically excluded from primarily for protection of teraction among the administer- Program review. Exempted activities this program. More local in- tidal wetlands. ing agencies should be ensured underboth programs similar; volvement(i.e.,delegation) in when two or more agencies are the exemptions for agricul- non-tidal program. Non- involved. tural activities are more ex- tidal wetlandscovered under pansive in the Tidal Maryland Critical Area Wetlands Program. Program are also excluded. 13. Relationship to Establishes new state permit Department of Natural No delegation of 404 Delaware hosts monthly To assure close coordination be- Other Existing system; best management Resources to develop agree- program. Joint permit ap- Corps of Engineers joint Per- tweLn State non-tidal wetland State and practices for forestry to be re- ments with state and federal plication with federal agen- mit Processing Committee protection programs and other quired; Division of Soil and agencies to coordinate with cies; share information but no meetings for coordination state and federal regulatory Federal Water Conservation to con- existing programs including joint review. with several Federal and programs, the administering Regulatory sult with other agencies water quality certification, State programs. agency should be required to Programs regarding protection of non- waterway permits, mining develop cooperative agree- tidal wetlands and coor- permits, . stormwater ments with state and federal dinate regulatory process management and sediment agencies concerning coordina- with any federal, state or control, coastal zone tion with existing programs local agency having jurisdic- management consistency such as water quality certifica- tion; Division to pursue as- and Section 404 of Clean tion, erosion and sediment con- sumption of federal Water Act. trot, coastal zone management authority for regulation of consistency, Section 404 of the non-tidal wetlands in Vir- Clean Water Act, surface mining ginia. permits and other programs as appropriate. 14. Permits for Silvicultural activities do not Dredging or excavation; Any encroachment in a wet- Current law non-agricultural A permit should be required for Regulated require a permit. Other ' ac- changing existing drainage; land requires a permit, in- lands 400 acres or more of all those non-exempted ac- Activities tivities which adversely af- disturbing water table,- driv- cluding dams and flood contiguous non-tidal tivities that will adversely affect fect wetlands require a ing piles or plac ing obstruc- control projects. swamp, bog, muck or marsh, wetlands. Permits should be is- permit, but legislation in- tions; destruction or removal all tidal wetlands. sued for activities resulting in cludes numerous exemp- of plants; activities causing unavoidable losses only when tions. physical or chemical change they are determined to be in the or introduction of pollutants. public interest and when there are no practicable alternatives. Furthermore, any regulated ac_ tivity undertaken by a state or local unit of government should comply with the terms and provisions of the state Program. Matrix - page 6 Category Virginia Maryland Pennsylvinia Delaware Chesapeake Bay Commission' Staff Recommendations 15. Permit Fees Director may require a non- Department may set fees by $50.00 Current law has provisions. A non-refundable permit fee refundable fee to recover regulation. should be deten-nined by each reasonable administrative jurisdiction which recovers all costs and require a administrative costs of process- reasonable performance ing the permit application. The bond to ensure satisfactory requirement of a performance performance of plan or per- bond is reasonable to ensure mit. satisfactory performance of any plan or permit. 16. Exempted Piers, boathouses, duck Repair and maintenance of General permit for utility line Current law exempts non- Exempted activities should be Activities blinds; outdoor recreational existing structures, utilities, crossings; agriculture; for- tidal wetlands less than 400 limited to those activities that activities, normal road farm ponds, stormwater estry acres or in agricultural use. aretied to specific purposes, and repair; construction or main- management ponds, rights- Mosquito Control Activities. could include maintenance of tenanceof public utility lines; of-way, railroad beds; iso- Construction of directional existing structures, utilities, agriculture and forestry ac- lated non-tidal wetlands less aids to navigation, duck farm ponds, stormwater tivities which do not convert than 1 acre with no sig- blinds, footbridges- the plac- management structures, rights- non-tidal wetlands and nificant plant or wildlife ing of boundar@ stakes, of-way and railroad beds, piers which utilize best manage- value where no alternative wildlife nesting structures; and boathouses of open-pile ment practices; construc- exists; non-tidal wetlands grazing of domestic animals; construction, forestry practices tion/ maintenance of farm within critical area (those haying; hunting; fishing and involving less than 5000 square ponds which convert less covered by specific trapping. feet, and isolated wetlands of than I acre; silvicultural ac- guidelines of Critical Area less than one acre with no Sig- tivities; reestablishment of regulations); Department of nificant plant or wildlife value agricultural activities. All ex- Natural Resources to adopt (to be determined by the ad- emptions with proviso that ac- regulations regarding ex- ministering agency) provided tivities do not. adversely affect emptions from individual that all appropriate measures non-tidal wetlands. permit recluirements. are taken to a-void or minimize the impacts on the non-tidal wetland(s) involved. pal Matrix - page 7 Category Virginia Maryland Pennsyivanla Delaware Chesapeake Bay CommIssior Staff Recommendations 17. Mitigation/ Department to promulgate Restoration, creation, en- Mitigation required for "im- Current law does not include Protection standards should Compensation regulations for mitigation of hancement requirements portant wetlands". No com- specific provisions. provide for a sequential proces, Provisions adverse effects of activities specified. Permitted losses pensation. (if avoiding and minimizing im on non-tidal wetlands. compensated at 1.5:1; illegal pacts. Avoidance should bt losses at least 2:1 by acreage. stressed as the overall goal May be greater than 1.51 for Compensation should be ex loss of function. Alterations plicitly stated and considered i of less than 5,000 square feet "last -cho ice" option. Mitigatiot with no significant adverse should be accomplished at tht impact may be exempt frurn front end of the pn)ject, with thi this section at the discretion plan clearly spelled out bef-I 1J of the Department. permit is issued. Wetland crea tion should be timely and should replace the functions of the wetland to be destroyed Compensation should be at i rate of 1.51 for permitted losses and at 2:1 for illegal losses. Com- pensation ratios could be highet at the discretion of the ad- ministering agency, depending upon the type and extent of wet- land loss. 18. Penalties for An administrative civil Issuance of notice of com- Criminal: up to $1,000 Current law - Provisions should be included Violations penalty not to exceed plaint; circuit court injunc- and/or 60 days prison, justices of the Peace Courts for both civil and criminal penal- $1,000/day can be imposed tion; civil penalty up to second offense: $500-$5,000, $50-$500. ties, as well as for the ad- for each day of violation. $10,000 (each day a separate one year prison. Civil: up to Superior Court $500-$10,000 ministrative imposition of civil Department may go to court offense); criminal penalty of $10,000 for willful violations, for intentional or knowing penalties. Penalties should be for compliance and recover misdemeanor and up to plus $500 per day violation violation. sufficiently strict to ensure ade- costs. Circuit court may as- $25,000 and I year for first of- continued. quate compliance. sess civil penalty not to ex- fense, $50,000 and 2 years for ceed $10,000/day for each subsequent offense. dayof violation. Court penal- ties apply only in cases of knowing and willful viola- tions (Class I misdemeanor). F. Matrix - page 8 Category Virginia Maryland Pennsylianla Delaware Chesapeake Bay Commission! Staff Recommendations 11 ProVislons for For permitted activities, During the permit process, None specified Current law - Programs should have Public Review governing body has 30 days notice of project and oppor- Public notice and public provisions for public review to review permit for consis- tunity for hearing upon re- hearing provisions. throughout the developrhent tency. Provisions included quest. Adjudicaitory hearing and implementation stages of for public hearings under limited to those aggrieved the program, including, but not Administrative Process Act and those with recorded in- limited to, development of the (A PA). terest. regulations, local assumption of the program, permit applica- tions, and projects where a hear- ing is requested. 20. Appeals For silvicultural activities:. According to Administrative 30days Environmental Hear- Current law - The appeals process should be formal hearing pursuant to Procedures Act. Request for ing Board Environmental Appeals according to Administrative APA. Other permitted ac- hearing on permit decision or* Board consisting of 7 voting Procedures Act and the judicial tivities: appeals made to notice of corrective action Delaware residents ap- requirements in each jurisdic- Department of Forestry. may come from aggrieved pointed by the Covernor tion. Each state program should party or person served with with consent of the Senate. make clear provisions to penalty or notice of corrective provide for citizen suits. action. 21. Staffing Needs Estimated additional staff of A maximum of 39 total staff, Currently increasing from 3 Current law - 7 full-time Asappropriateforcompleteand 22: to be phased in over a 3-year it) 6 (central permit review equivalents. effective program development, Department of Conservation period: - staff). Freshwater Wetlands pro- administration and enforce- and Historic Resources 11 16 permit review gram may require a sig- ment, Department of Forestry 11 4 clerical nificant increase. Very tentative- estimates at 14 enforcement this point. I attorney Much depends on local op- 2 mitigators/plan review tion provisions for ad- 2 mapping ministration. I st year budget estimate: $675,000 salaries; $350,000 mapping This is a very@' tentative es- timate, assuming total state administration of program. @pealjlWoni@ 3 6668 14102 9084