The Maryland Department of Environment (MDE) has proposed changes to nontidal wetlands regulations that could increase costs but also open up mitigation options for development teams.
Maryland wetlands fee-in-lieu and mitigation banking options are severely limited because the state’s regulatory framework does not comply with the U.S. Army Corps of Engineers’ 2008 Federal Mitigation Rule.
Making the Maryland regulations consistent with the 2008 rule would allow MDE to oversee mitigation on behalf of the Corps through the State Programmatic General Permit. It would also allow the state to implement a fee-in-lieu that reflects current mitigation costs and can be used to satisfy federal requirements.
The changes increase the possibility that a functioning wetlands banking system could once again be a viable option to mitigate unavoidable wetland impacts during development. A turnkey wetland banking system could speed and simplify compliance options for development teams, ensure long-term maintenance and provide a superior environmental outcome.
MDE is taking input on ways to prevent “price gouging” where wetland bank operators take advantage of the regulatory requirement that development teams utilize available wetland banks before using other mitigation options. One approach under consideration is to vary the sequence of mitigation based on an administrative determination.
The regulations propose integrating new elements that could vary mitigation ratios based on net changes to nontidal wetland function. Under that approach, impacts to lower quality wetlands could require less mitigation, while impacts to higher quality wetlands could require higher mitigation ratios. How this would work is not fully explained in the draft.
MDE will take public comments on the discussion draft until December 18th. A final version of the regulatory changes will be published and open for public comment in April or May of 2026.