Regulating critical areas was an attempt by Maryland to move beyond individual regulatory initiatives, broaden the geographic scope within which government had clear authority, and to establish a framework wherein the State and local jurisdictions would jointly address the impacts of land development on habitat and aquatic resources.

Wetlands in the State of Maryland are protected under the following regulations:

• Maryland Critical Areas Act
• Maryland Nontidal Wetlands Protection Act
• Maryland Tidal Wetlands Act
• Waterway and 100-Year Floodplain Construction Permitting
• Maryland Model Statues with Local Implementation
• Critical Area Program Changes
• Density Zones and Growth Allocation

The Critical Area Act

Passed in 1984, the Critical Area Act expanded the reach of resource protection and development management beyond narrow wetland buffers and traditional zoning enforcement. Wetland buffers at that point were 25 feet, unless the State defined it as “critical”, and with that the buffer expanded to 100 feet.

The 1984 act defined “Critical Area” as all land within 1,000 feet of the Mean High Water Line of tidal waters, the landward edge of tidal wetlands, all Chesapeake Bay waters, and lands under the Bay and its tributaries. The law created a statewide Critical Area Commission to oversee the development and implementation of local land use programs directed towards the Critical Area that met the following goals:

• Minimize adverse impacts on water quality that result from pollutants that are discharged from structures or conveyances or that have runoff from surrounding lands;
• Conserve fish, wildlife, and plant habitat in the Critical Area; and
• Establish land use policies for development in the Critical Area which accommodate growth and also address the fact that, even if pollution is controlled, the number, movement, and activities of persons in the Critical Area can create adverse environmental impacts

Maryland Nontidal Wetlands Protection Act

The stated goal of the Nontidal Wetlands Act is no net loss of nontidal wetland acreage and function.  Nontidal wetlands include marshes, swamps, bogs, wet meadows, and bottomland forests.  They are inland, freshwater areas usually covered or saturated with water for long periods during the growing season, and as their name indicates, their water level does not rise and fall with changing tides.

The Maryland Department of the Environment’s (MDE) Nontidal Wetlands and Waterways Division oversees the permit process for construction projects affecting nontidal wetlands.  A permit is required for any activity that alters a nontidal wetland within its 100 foot buffer. The goal is to ensure resource protection by authorizing only necessary and unavoidable impacts.  MDE regulates the following activities:

• Grading or filling
• Excavating or dredging
• Changing existing drainage patterns
• Disturbing the water level or water table
• Destroying or removing vegetation

Maryland Tidal Wetlands Act

Tidal wetlands include marshes, swamps, forested wetlands, and submerged aquatic vegetation that are affected by tidal changes.  The goal of the Tidal Wetlands Program is to ensure reasonable use while providing important resource protection. MDE regulates the following activities:

• Filling of open water and vegetated wetlands
• Construction of piers, bulkheads, revetments
• Dredging
• Establishing marshes

Waterway and 100-Year Floodplain Construction Regulations

Waterway construction regulations ensure that activities in a waterway or its floodplain do not create flooding on upstream or downstream property, that fish habitat and migration is protected, and waterways are not degraded by erosion.  Authorization is required for construction or repair of projects in a waterway or a 100-year floodplain, and will almost surely include the Amry Corps of Engineers. Projects include:

• Dams and reservoirs
• Bridges and culverts
• Excavation, filling or construction
• Channelization
• Changing the course, current, or cross-section of any stream
• Temporary construction, such as utility lines

The federal Clean Water Act also gives broad mandates to the Army Corp of Engineers to regulate development that might affect navigable waterways, and the Act gives the Environmental Protection Agency responsibility to regulate pollutants.

Maryland Model Statues with Local Implementation

Under the Critical Area Act the Commission developed criteria that were to be used by 61 local jurisdictions – now 64 — to develop individual Critical Area programs and amend local comprehensive plans, zoning ordinances, and subdivision regulations. The programs adopted by local governments were intended to be specific and comprehensive, yet address the unique characteristics and needs of each county and municipality.

Touted as a bold initiative by State supporters, critics argued local implementation varied widely between local jurisdictions and often lacks the political will to deal with violations.

A mid-2006 report by the University of Maryland Environmental Law Clinic detailed the loose and uneven application of the Act. One quantifiable example is that a landowner who clears an acre of trees in a critical area is required by County A to plant 400 trees, County B specified 109 trees, and County C only 70 trees.

Critical Area Program Changes

A spokesperson for the Critical Area Commission said that during the 2004 and 2006 legislative sessions, the Commission won legislation authority to increase enforcement, boost maximum fines, and assist local jurisdictions with enforcement issues.

In the spring of 2008 another comprehensive revision of the Critical Area Law was enacted, producing some immediate changes and outlining some to be phased in over time. The goal was to improve the Critical Area Program’s operational structure, enhance the coordination between the State and local governments, clarify and strengthen enforcement procedures, increase consistency and fairness, and more effectively protect Maryland’s tidal shoreline from the negative impacts of growth and development. According to the Commission, in addition to provisions affecting enforcement, shore erosion control, future growth, the development of new Critical Area maps, and managing the footprint of development activity, the legislation included language allowing the Critical Area Commission to adopt its own regulations. Providing the Commission with regulatory authority was viewed as essential to streamlining the Critical Area Program and ensuring that the increasingly complex and variable issues affecting Maryland’s Bays can be addressed quickly and effectively.

In March 2010 new rules took effect to ensure more consistent implementation of standards by local jurisdictions and enhanced enforcement in the face of violations, such as clearing or removal of natural vegetation without an approved Buffer Management Plan.

Density Zones and Growth Allocation

The Critical Area Act required that all land within the Critical Area be assigned one of three land-use categories based upon the density of development when the Act was adopted.

Resource Conservation Areas (RCAs)

• The most restrictive land-use classification
• Designated for resource protection or utilization
• Low-intensity residential development – One dwelling unit per 20 acres
• Characterized by natural environments or by resource-based activities –Agriculture, aquaculture, commercial forestry or fishing
• New commercial and industrial facilities are not permitted
• No forest cover may be removed without replacement
• Impervious surface cover is limited

Limited Development Areas (LDAs)

• Middle land-use classification
• Moderate intensity residential development
• Limited commercial development
• Must conserve existing areas of natural habitat
• Must incorporate wildlife corridors that ensure continuity of wildlife and plant habitat
• Housing densities based on local zoning regulations
• No forest cover may be removed without replacement
• Impervious surface cover is limited

Intensely Developed Areas (IDAs)

• Least restrictive land-use classification
• Designated for high-intensity development
• Defined as areas of twenty or more adjacent acres where residential, commercial, institutional, or industrial land uses predominate
• Development encouraged (not required) to minimize forest destruction and impervious surface cover
• New development or redevelopment must reduce pollution from stormwater runoff by 10% using best management practices.

Growth Allocation

Growth allocation is a process whereby local jurisdictions are allowed to approve additional growth and development in certain parts of the Critical Area by changing the Critical Area classification from RCA to either LDA or IDA or from LDA to IDA. Growth allocation is used to accommodate more intense land uses and development than what would have been permitted based on the existing classification.

Each county is allotted a finite number of acres that can be used to reclassify land. Requests to use growth allocation must go through a review and approval process at the local level. Following local approval, growth allocation requests must be submitted to the Critical Area Commission for review and approval. 

Information presented in this article is believed to be accurate. However, legislation and enforcement are subject to change and interpretation. It is recommended that you contact your local government land use department in order to discern how regulations are enforced in your area. This information is presented without warranty.