Anne Arundel County Strengthens Nontidal Wetland Protection Measures
Forested wetlands in Anne Arundel County
Anne Arundel County, Maryland’s Office of Planning and Zoning (OPZ) issued three new Green Notices detailing increases to protection of nontidal wetlands. These notices became effective March 6, 2020, the same day they were issued. OPZ-20-04 updates the sketch and preliminary plan checklists and submittal requirements, OPZ-20-05 includes additional requirements to verify the existence or absence of nontidal wetlands and their buffers, and OPZ-20-06 increases protections and minimum mitigation conditions for nontidal wetlands. These notices are part of the County’s new initiative to improve “transparency in the development and construction review process” which Wetland Studies and Solutions, Inc. (WSSI) is monitoring. A summary of each is provided below. WSSI recommends delineating environmental features, including wetlands, early in the site development process, and this is particularly important for sites in Anne Arundel County. Additionally, reviewing a site with County staff may help pave the road for a smoother development process.
OPZ-20-04: Identifying Existing Conditions and Natural Resources through the Sketch and Preliminary Planning Process
The purpose of this policy is to provide updated checklists intended to “ensure natural resources are appropriately mapped at the onset of the review process.” OPZ updated the sketch and preliminary plan checklists and submittal requirements to meet this objective. All sketch and preliminary plan applications submitted on or after April 3, 2020, must use the updated checklists; applications without the updated checklist(s) will be rejected or held until all the required information has been supplied.
OPZ-20-05: Verifying the Existence or Absence of Nontidal Wetlands and their Buffers
The purpose of this policy is to establish “standard operating procedures to verify the existence or absence of nontidal wetlands and their buffers on a project site.” Anne Arundel County OPZ staff will conduct an initial assessment using a variety of GIS data sources to determine if State-regulated resources, particularly nontidal wetlands, are present on a site that is proposed for development. If staff determines regulated resources are likely to exist within 100 feet of the proposed limit of disturbance, a formal wetland delineation must be performed by a qualified professional and the subsequent report must be submitted to the County.
If the County determines potential wetlands exist within 25 feet of the proposed limit of disturbance or within 100 feet of a Wetland of Special State Concern, the County will require the applicant conduct a pre-application meeting with the Maryland Department of the Environment (MDE) and submit the pre-application meeting findings to the County. This formalizes the procedure for a developer to obtain written MDE confirmation of the wetland limits at the beginning of the development process. The policy was put forth in May 2019 (click here for our related Field Notes article).
WSSI has qualified wetland professionals on staff and our delineation reports already meet all the conditions defined in Notice OPZ-20-05.
OPZ-20-06: Protections and Minimum Mitigation Conditions for Nontidal Wetlands
Anne Arundel County OPZ staff will prohibit any avoidable disturbance of nontidal wetlands and their buffers. If impacts are unavoidable after considering alternative site design options, applicants must apply for a modification to justify the impact, per Section 17-2-108 of the County Code. A wetland permit from the appropriate state and federal agencies (i.e., MDE and U.S. Army Corps of Engineers (USACE)) must be provided as part of the modification application. Depending on the project and size of the impact, wetland permits take several months, with extreme cases taking years, to obtain. This represents a significant potential time delay during the application process.
OPZ does not guarantee modifications will be approved. If the request is approved, the minimum mitigation requirements for any modification to the nontidal wetland or 25-foot wetland buffer is as follows (ratios refer to amount of mitigation category per square footage of disturbance):
Based on this guidance, mitigation will be required by the County even if mitigation is not required by MDE or the USACE. In addition, all mitigation must be performed in the same watershed as the impact, but additional guidance is needed to determine the level of watershed. Locating a suitable site, and subsequently designing and permitting mitigation projects could result in significant permitting delays. Finally, this guidance contradicts the 2008 Mitigation Rule issued jointly by the USACE and the U.S. Environmental Protection Agency, which lists mitigation banks as the preferred type of mitigation over more expensive, less environmentally beneficial on-site or off-site permittee responsible mitigation.
What does this mean for my projects?
The Green Notices were effective immediately. OPZ staff has made it very clear in conversations with the regulated public that in order for a modification to be granted, the applicant must justify that a modification is warranted, avoid impacts to the maximum extent practicable, provide compensation for environmental impacts, and demonstrate that the mitigation results in a significant environmental improvement to the satisfaction of OPZ. Anne Arundel County has set the bar very high for obtaining a modification. These environmental protection policies are in line with the direction that the County has taken since County Executive Steuart Pittman took office in December 2018. WSSI recommends that you delineate the environmental features, including wetlands, early in the site development process and review with County staff to avoid surprises.
If you have questions about what the new Anne Arundel County policies mean for your projects or if you need assistance verifying the presence of regulated resources on your site, please contact Mike Klebasko in our Millersville, Maryland office.