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Maryland Department of the Environment
Restoration and Regulation
Discussion
Presented by:
Wetlands and Waterways Program
Maryland Department of the Environment
Coordination Meeting
March 12, 2013
Issues
Need for Timely Completion of
Restoration Projects
Need for Complete and Accurate
Permit Applications and
Compliance with Requirements to
Issue Authorizations
Practitioners Have Expressed
Frustration with Need for Permits,
Information Requirements, and
Delays
Regulatory Agencies Have
Expressed Frustration at Poor
Coordination, Incomplete
Applications, and Projects that Fail
to Comply with Requirements
Waterways Construction Act of 1933
Tidal Wetlands Act of 1970
Nontidal Wetlands Act of 1989
Alternatives Analysis
Concept applies across all three statutes
and regulations for reducing adverse
impacts to:
Regulated resources and their
continued ability to provide desirable
functions; and
Other factors required to be
considered and that may be affected by
proposed project
Best Interests of State
In addition to water quality and habitat,
considerations include:
• Economic
• Developmental
• Recreational
• Scenic/Aesthetic
• Marine Commerce
• Navigation
Best Interests of State cont.
• Loss of life or high value property
• Increase risk of flooding on other
property
• Danger from natural hazard
• Historic property
Sources of Conflict
1) Nature of the project:
Goals, Objectives, Site
2) Conflicting resource goals:
Site, Other Requirements, Design
3) Method of accomplishing the project:
Design, Construction, Postconstruction
4) Functions of the existing resource:
Site
Includes:
Alternative site analysis (other property)
Onsite avoidance and minimization (how
and where project is accomplished on
subject property)
Concerns have been raised about
restoration projects being reviewed in
same way as development projects.
Statutes and regulations generally do not
distinguish between project types.
As with development projects. Improperly
located, poorly designed, and/or constructed
restoration projects can also be damaging to
water resources functions and
statutory/regulatory considerations.
The amount of detailed information required for
the alternatives analysis is usually based on:
• Extent of the proposed impact;
• Condition and function of the resource;
• Other mandated considerations
Restoration projects that are shown with
supporting information to be:
• Sited in appropriate locations;
• Designed properly; and
• Constructed with minimal disturbance
• Will readily meet review requirements and
be promptly authorized.
Alternative Site Analysis
The analysis should answer the questions:
• How was site selected?
• What other sites were considered?
• Why was site chosen over others?
• What would the impacts and benefits be on
other sites?
Watershed Plans Can Answer
Previous Questions
For example:
Refer to prioritized list of sites in MS-4 plan
and show how proposal is ranked
Proposal may face challenges if omitted, is low
priority; or contrary to watershed plan
priorities
Onsite Avoidance and Minimization
Analysis
Restoration projects that are not properly
located, designed, or constructed may
result in unnecessary degradation to
other valued benefits
All applicants are expected to avoid
adverse impacts where practicable,
or,
If not practicable, reduce the adverse
impacts as much as possible
Analysis should describe:
• How impacts were reduced and why
further reductions are not feasible;
• What constraints, if any, exist to prevent
reduction of impacts; and
• What attempts were made to overcome
constraints
More documentation may be required.
Common Avoidance and minimization
Actions include:
– Locate project on another part of the
property
– Reduce the size and scope of the project
– Re-design or re-configure the project
– Use different construction techniques or
materials
Reduce the size and scope of the project
Smaller area of impounded water
Lower water level, to prevent undesirable
change in plant community
Remove encroachment into navigation
channel
RE-design or Re-configure the
Project. Questions are:
Can the structure dimensions and
secondary impacts (e.g. area and depth
of impounded water be reduced?
Will the design sustain the 100-year storm
flows?
Note: the smallest structure or
disturbance for accomplishing a selfsustaining project are generally
preferred
Design
•
Does the design adequately consider sitespecific characteristics, including hydrology?
•
Are there impacts to regulated resources? If
so, are the impacts:
–
•
Considered harmful to existing resources,
whether onsite or offsite?
Does the design address the cause of the
problem?
Design cont.
•
In conflict with other requirements,
conservation goals, standards, or laws?
•
Necessary to accomplish the goals of the
project?
•
Is a structure requiring active operation
required? If so, who will maintain and operate
it? What may occur if the structure fails or is
operated improperly?
Results of Re-Design
Lower sill surrounding a tidal wetland
Instream, low profile weir rather than
berm in wetland/floodplain
Upgrade or retrofit existing structure
in place on new project
Use Different Construction
Techniques or Materials
Remove accumulated sediment prior
to dam removal
Operate equipment from existing road
rather than constructing new
access road
Avoid use of gabion baskets
Constraints to Avoidance and
Minimization
• If an applicant states that certain constraints
that further avoidance and minimization,
agencies may require documentation
indicating that attempts were made to
overcome constraints. Constraints may
include:
• Cost
• Local design standards
• Health/safety requirements; and
• Other water/natural resources considerations
Attempts to Overcome Constraints
• Documentation of other requirement
• Documentation of attempt to seek waiver
from other requirement
• Financial information
More expensive alternative may still
be required
Maryland Department of the Environment
Wetlands and Waterways Program
1800 Washington Boulevard | Baltimore, MD 21230-1718
410-537-3000 | TTY Users: 1-800-735-2258
www.mde.state.md.us