Society of Wetland Scientists Annual Meeting, The Role of Wetlands in Meeting Global Environmental Challenges: Linking Wetland Science, Policy, and Society

1. 1186 - Balancing Nonpoint Source Water
Quality Management with Wetland and
Stream Preservation: Historic Lessons
Learned
by Andrew T. Der, C.E.P.
Presentation for
Society of Wetland Scientists Annual Conference
Baltimore, Maryland
Monday May 31, 2019
Andrew T. Der & Associates, LLC
Environmental Consulting
1000 Fell Street | Baltimore, MD 21231
1.410.491.2808 | AndrewTDer@comcast.net

2. Presentation Contents
- Maryland Water Resource Regulation
- Maryland Stormwater Management Principles
- Project Site
- Agency Review Process
- Proposed Best Management Practices and Mitigation
- Additional Water Quality Conditions from Public
Interest – and Outcome

3. Summary of Maryland
Water Resource
Regulation

4. Surface Water Regulation
Past and Present
Disturbance to surface water resources
• 1948 Federal Water Pollution Control Act with 1972 amendments - Clean
Water Act (CWA)
• Most influential environmental law affecting surface waters in history -
and catalyzed other ancillary state and local programs
• Established the basic structure for regulating pollutant discharges into
the Waters of the U. S. (WUS) giving the U. S. Environmental Protection
Agency (EPA) authority to implement pollution control programs directly or
by delegation or general permit to other agencies or states
• Emphasizes “…restore and maintain the chemical, physical, and biological
integrity of the Nation’s waters…” – “…make all U.S. waters fishable and
swimmable…”
• Gradually transitioned from point source strategies to nonpoint source

5. Surface Water Regulation
Past and Present
Disturbance to surface water resources
• The Sections of the CWA most affecting WUS, including wetlands, at the site
level at the time of this project (1990 into early 2000s) were:
– Section 404 requiring a federal permit from the U. S. Army Corps of
Engineers (COE) to discharge material
– Section 401 state Water Quality Certification (WQC) from the Maryland
Department of the Environment (MDE) requiring the applicable state certify
that a 404 permit will not violate that state’s water quality standards in order for
the permit to be issued
• Surface water resource regulation including wetlands and stormwater
management (SWM) criteria of the nature required today were in their infancy
and the above were the only true processes in place at that time
• The EPA Antidegradation policy (ADP) via the 401 WQC process was the
primary water quality management instrument and de facto on-site SWM
requirement at that time – stating: “…to accomplish the objective of maintaining
existing water quality…nonpoint sources shall achieve all cost effective and
reasonable best management practices for nonpoint source control…” –
administered in three Tiers of standards at state level

6. Surface Water Regulation
Past and Present
Disturbance to surface water resources
• Other CWA Sections commonly in place today (but not back then) include:
–- Section 402 National Pollutant Discharge Elimination System
(NPDES) through Phase I and II implementation regulating pre-existing
point and nonpoint source pollution, and from new construction, by EPA
“delegation” to states through General Permits
– New construction is authorized under a Notice of Intent (NOI) process
concurrent with MDE SWM plan approval
– Existing pre-regulation and older municipal discharges are authorized
by issued Municipal Separate Storm Sewer System (MS4)
programmatic permits with retrofit, restoration, and remediation conditions
– and is the only permitting to remediate legacy water quality
impairments, and in the framework of Chesapeake Bay TMDL goals in
Maryland

7. Surface Water Regulation
Past and Present
Disturbance to surface water resources
• Other CWA Sections that commonly apply today include:
– Section 303 requires states to list impaired waters and develop
Total Maximum Daily Loads (TMDLs) for these waterbodies to
establish the maximum amount of a pollutant allowed as a
starting point and planning tool for restoring water quality.
– The largest TMDL is for the entire Chesapeake Bay, setting
the framework today for many of current regulatory programs and
processes through local MDE-approved Watershed
Implementation Plans (WIP) along with any permitting
processes

8. Project Process Timeline
• 1990 – The project permittee applies for a CWA COE Nationwide General
Permit (NWP) along with a CWA Section 404 Section 401 WQC from MDE
for proposed impacts to jurisdictional WUS, including wetlands, via a joint
permit application (JPA) – these were the only authorities in place at the time
grandfathering the project from later processes
• Mid-1990s – MDE implements state Nontidal Wetlands and Waterways
(NTWW) permitting process regulating nontidal waters for areas
jurisdictional per WUS via a JPA combining it with the COE 404/MDE 401
WQC process – with MDE additionally regulating as state-only waters the
100-year floodplain, the 25.0 foot (7.6 meter) nontidal wetland buffer, wetland
vegetation clearing, and isolated wetlands not COE-jurisdictional per
SWAANC Supreme Court Ruling
• Mid-1990s - COE issues to Maryland first Maryland State Programmatic
General Permit (MDSPGP) in lieu of most NWPs programmatically
authorizing impacts to the state when meeting certain criteria which, in effect,
allows MDE to authorize many projects on the COE's behalf with certain
federal conditions

9. Regulatory Process Timeline
• Mid-1990s - Maryland Department of Natural Resources (DNR) implements
forest conservation act regulating forest cover including mitigation and first
programmatic stream buffer setback and reforestation requirements by delegation
to local governments through planning overlay criteria
• Mid-1990s - MDE implements CWA Section 402, NPDES Phase I and II
programmatically via EPA General Permits
• Mid-1990s to 2007 - MDE refines their SWM program delegated to localities by
policy, a manual, and 2007 SWM Act to gradually integrate ecological and
resource criteria with engineering in coordination with the limits of waters, including
wetlands – incorporating Best Management Practices (BMP) by reference, and
formalizing Environmental Site Design (ESD) to the Maximum Extent Practicable
(MEP) – compliance is achieved by channel stability and post-development
conditions replicating to the receiving stream “woods in good condition” – where
using structural stormwater practices is least preferred
• 1992 to early 2000s – the initial project is completed along with first watershed
BMP monitoring effort followed by subsequent ancillary build-out of other
contiguous properties up-drainage in separate phases regulated by the additionally
implemented criteria

10. Other Resource Regulatory
Processes
Disturbance to tidal surface water and land
resources regulated then but did not apply
• Tidal Waters Including Wetlands:
MDE regulates tidally-influenced open and navigable water and their
wetlands through their tidal water regulations and COE CWA Sections
404/401 along with COE Section 10 of the Rivers and Harbors Act via
the JPA process
• Critical Area Commission for The Chesapeake & Atlantic Coastal
Bays:
The DNR regulates land and water impacts including mitigation and
stream buffer setbacks within 1,000 feet landward from tidal Mean
High Water through a delegated local planning overlay process

11. Summary of Maryland
Stormwater Management
Principles

12. Habitat Avoidance Alone
Insufficient

13. What Could Happen

14. How is SWM Applied at the Project
Level?
BMPs are policies, practices, procedures, or structures that
mitigate the potential effects of stormwater runoff associated with
land clearing and impervious surfaces prior to release into a
water. BMPs can be structural or non-structural.
- Early planning
- Local stream buffers and setbacks
- Minimize or disconnect impervious surfaces
- Maximize sheet flow and open section pavement
- Utilize BMP devices (most significant factor affecting performance
is construction and maintenance!)

15. BMPs and Permitting
Smaller Volumes - try
first
“First Flush” is preferred and most
compatible with ESD at-source
and/or pretreatment quality
control
• Infiltration
– trench/basin
• Filtering
– sand filter/bioretention
• Hydrodynamic Devices above
or underground
– Curb & gutter vortex/filter
basin
• “Newer” Technology
– pervious surfaces/green
roofs
Larger Volumes – if
needed
When preferred is Insufficient
for both quantity and quality
• Stormwater Ponds
– wet pond
– wet ED pond
– dry ED pond (w/pre-
treatment)
– multiple pond system
• Stormwater Wetlands
– shallow marsh
– ED shallow wetland
– pond/wetland systems

16. Classification of Maryland Waters
• Use I & I-P: contact recreation and protection of
aquatic life waters
• Use II: shellfish harvesting waters
• Use III & III-P: natural reproducing trout waters
• Use IV & IV-P: recreational (put and take) trout
waters
Can require additional waters, including wetlands,
compliance criteria

17. Water Quality Standards
• Can be numeric and narrative, and may be basis for sensitive
waters requirements
• Needs to maintain the designated uses (e.g. recreation, aquatic
habitat, drinking water)
• Can impose a construction time-of-year restriction in a permit
• Numeric – Dissolved Oxygen, Temperature, pH, turbidity, bacteria,
toxics
• Narrative - Protection of aquatic life...fishable…swimmable
• Antidegradation (ADP) policy from EPA:
“…To accomplish the objective of maintaining existing water
quality…nonpoint sources shall achieve all cost effective and
reasonable best management practices for nonpoint source
control…” (this was de facto onsite stormwater quality management
at that time!)

18. Summary of Project Site

19. Location of Project Area

20. Location of Project Area

21. Initial Development at Low Point

22. Summary of Agency
Review Process

23. Initial MDE/COE Permit Steps
• Determined to be higher quality Use I-P water
• Purpose and need
• Avoidance and minimization of WUS from roads,
utilities, and other disturbances
• On-site stormwater quality management
• Quantity SWM (County review completed prior to JPA)
• Coordination with local authorities, NGOs, and
stakeholders
• Need to address ADP and SWM

24. Apply SWM Preferences
• Vegetative buffers, disconnects, open section
pavement
• Infiltration practices if soils allow
• Bioretention, swales, wetland filtering
• Retention or extended detention pond with
wetlands (to include quantity management)

25. Accepted Site-specific Mitigation
and BMP’s
• Stream/wetland impacts limited to necessary roads/utilities
• In-waters SWM in marginal/poor areas only
• Minimum stream buffer of 100‘ (30.5 meters)
• Wetland mitigation and replanting in cropped riparian buffer areas
• “First flush” stormwater quality management in uplands
• Infiltration/filtration where feasible (permeable soils and depth)
• Primary quantity stormwater management in “horseshoe” pond
• Water pooling areas planted with wetland vegetation

26. Public & NGO Involvement
• Public Notice
• Waters may have Use III or IV (higher quality trout
water) potential
• Temperature and ponds potential concern
• EPA ADP may apply
• Implemented trout stocking and sampling
• Findings - no Use III or IV standards but high quality
Use I

27. Summary of Proposed
BMPs and Mitigation

28. Work with Forest and Wetlands

29. Utilize Site Character

30. Pond and Wetland Management

31. Impact Avoidance and SWM

32. Temperature Sensitive Resources

33. Transition Pond Habitat

34. SWM & Landscaping

35. SWM and Landscaping

36. Urban Areas

37. Small Spaces

38. More Small Spaces

39. Stream Stabilization and
Restoration
• One of first then
• Can be effective
watershed
sediment control
practice
• Can be local
approval
requirement
• Can be a traded
credit
• Can be out-of-
kind wetland
mitigation

40. Additional Water Quality
Conditions from Public
Interest – and Outcome

41. Additional Mitigation and SWM
• Water quality monitoring plan
• Stream reach temperature model
• Maximum 20% diversion base flow to ponded areas
• Shade planting of open stormwater conveyance
areas
•Toe drain pipes under embankment fill for increased
cooler groundwater contribution

42. Stream and Water Quality
Monitoring
One of first then – basis for
County Special Protection Area
Can be used for state Watershed
Compliance
Can be used for DNR stream data
Preconstruction, construction and
post-construction essential
Included Macroinvertebrate
studies
(more common then for point
source – WWTP, mining, etc.)
Chemistry, Geomorphology

43. Primary Monitoring Component

44. Historic Rapid Bioassessment Data
Rapid Bioassessment Metric Comparisons to Pre-Construction
Year ST2 ST6 ST10
1993 Non Impaired ** Non Impaired **
1994 Non to Mod. Impaired Non Impaired Non Im
1995 Non to Mod. Impaired Non to Mod. Impaired Non Im
1996 Non to Mod. Impaired Moderately Impaired Non to M
1997 Non to Mod. Impaired Non to Mod. Impaired Modera
1998 Moderately Impaired Non to M
1999 Moderately Impaired Moderately Impaired Modera
2000 Moderately Impaired Non to Mod. Impaired
2001 Non to Severely Impaired Moderately Impaired Non Im
2002 Non to Mod. Impaired Mod. to Severely Impaired
** Non Impaired value is given to the first (reference) date for comparison purposes;

45. Historic Dissolved Oxygen Data
Piney Branch Mean Dissolved Oxygen Levels for Stations 2, 6 and 10
0
2
4
6
8
10
12
14
1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002
Year
mg/l
ST. 2 Mean D.O. ST. 6 Mean D.O. ST. 10 Mean D.O. Use I Min. D.O.

46. Historic Temperature Data
Piney Branch Instream Peak Temperatures
Stations 2, 6 and 10
0
5
10
15
20
25
30
35
1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002
Year
Temperature(oC)
ST. 2 ST. 6 ST. 10

47. Lessons Learned
• Contributed to “how we do it now”
• Contributed to onsite “first flush” Environmental Site Design (ESD) to
the Maximum Extent Practicable (MEP) principles
• Contributed to “cold water” SWM and BMP strategies when waters,
including wetlands, permits are required
• Contributed to innovative county Special Protection
Area legislation
• Basis for local, state, federal coordinating committees and public
processes
• Contributed to initial County reporting requirements to MDE to comply
with CWA Section 402 Phase I MS4 NPDES MS4 Permit