Understanding the Updated Maryland State Programmatic General Permit

As of October 1, the Maryland State Programmatic General Permit (MDSPGP), which is used to authorize all types of work in all waters, including wetlands, has been reissued. In this blog, Princeton Hydro’s Senior Environmental Scientist Duncan Simpson, PWS, provides a breakdown of the newly revised terms and conditions of the permit. 

Let’s dive in.

What is the Maryland State Programmatic General Permit?

The MDSPGP was developed with the Maryland Department of Environment (MDE), which has regulatory authority over all waters throughout the state of Maryland. The MDSPGP helps to ensure a streamlined authorization process for certain work in waterbodies and waterways, and is designed to improve the regulatory process for applicants, reduce unnecessary duplicative project evaluations, and promote more effective and efficient use of U.S. Army Corps of Engineers (USACE) resources while providing equivalent environmental protection for aquatic resources.

The sixth MDSPGP was issued on October 1, 2021 by the USACE Baltimore District and is titled the “MDSPGP-6.” The prior permit, MDSPGP-5, expired on September 30, 2021. 

Projects approved under the MDSPGP-5 permit that commenced prior to September 30, 2021 have been given 12 months to complete the work under the terms and conditions of the old permit. Projects that started after September 30, 2021 must meet the terms and conditions of MDSPGP-6 and in some cases receive written re-authorization.

What are the most significant changes in the MDSPGP-6?

The revised permit allows for activities that have minimal adverse environmental effects, and like MDSPGP-5, splits the review of activities into two categories: Category A and Category B. If proposed activities meet the provided Category A conditions and requirements, no USACE review is required.  

The most significant change is the eligibility for Category B activities. The eligibility is no longer determined based on total temporary and permanent impacts. Instead, the primary threshold measurement for determining whether a project qualifies for authorization under the MDSPGP-6 is the total acreage of “loss of Waters of the United States.” The loss threshold is generally one-half-acre of total tidal and non-tidal waters, including streams, wetlands, and open waters. And, the loss of streams may not exceed 1,000 linear feet. 

Another important revision changes how the USACE assesses permanent wetlands conversion. Under the MDSPGP-5, the permanent conversion of wetland type (e.g., forested to emergent) is considered a temporary impact and counted towards the Category B thresholds. Under MDSPGP-6, however, the conversion is considered a temporary impact but DOES NOT count towards the Category B thresholds, though the USACE may require compensatory mitigation for the loss of function. 

Additionally, under the MDSPGP-6, the USACE now allows dredged material to be placed in a beneficial reuse site, under activity A(10) New Minor Dredging in Tidal Waters Category B. The material must be tested and shown to be clean in compliance with Evaluation of Dredged Material Proposed for Discharge in Waters of the United States-Testing Manual: Inland Testing Manual. The applicant must identify the intent to place the dredged material in Water of the U.S. at the proposed placement site and provide exact quantities of those dredged materials. And, the discharge of dredged or fill material must be authorized under activity f(2) Living Shorelines/Beach Nourishment Category B. 

Activity f(2) has been renamed from “Tidal Marsh Creation/Beach Nourishment” to “Living Shorelines/Beach Nourishment.” Under f(2) Living Shorelines/Beach Nourishment, the Category A review now allows for vegetated wetlands impacts up to one-square-foot per linear foot of activity along the shoreline. The Category B review of this activity allows for impact to Submerged Aquatic Vegetation (SAV) but the applicant must show that the impacts were minimized to the maximum extent practicable. 

Category B also now allows up to one-half-acre of tidal wetland loss, but does not allow for any overall net loss of wetlands. In other words, a living shoreline or beach nourishment project can permanently impact up to one-half-acre of tidal wetlands if an equal amount of non-tidal wetlands are created by the activity. 

More Notable Changes

Perhaps the most interesting change is that a new activity has been added to the MDSPGP-6, e(11), Aquatic Habitat Restoration, Enhancement, and Establishment Activities Associated with Compensatory Mitigation Requirements for Aquatic Resource Impacts Authorized under the MDSPGP-6. 

This new activity allows for mitigation projects to be authorized under a more streamlined process than the Nationwide Permit 27. The projects must still meet the State of Maryland and federal compensatory mitigation requirements. Category A allows activities required to meet the compensatory mitigation requirements to offset permanent impacts from an approved Category A activity. The Category B similarly allows compensatory mitigation activities for offsetting the losses from an approved Category B project.

The MDSPGP-6 also has new general conditions, and a few are worthy of discussion: Temporary fill, structures, and mats used for site access lasting longer than 12 months now require Category B review. Any proposed work in Critical Habitats (i.e., sections of the Potomac River, Nanticoke River, and Marshyhope Creek) or National Estuarine Research Reserves require Category B review. 

The permit update also includes new conditions that support aquatic organism passage. Pipes and culverts must now be countersunk below the natural stream invert, while still allowing for ordinary high water to pass through them, which . In cases of bedrock or pipes being placed over existing underground utilities that would prevent countersinking, documentation is required. Also, extensions to existing pipes and culverts are exempt from this requirement. Finally, if countersinking is not practicable, then Category B review is required. 

Speaking of fish passage, the conditions for anadromous fish time of year restrictions are now consolidated into a single general condition. To protect migratory pathways and spawning activities, for any project that is located within tidal and non-tidal coastal plain streams or piedmont streams in Harford and Cecil Counties, in-stream work is not allowed to be conducted between February 15 and June 15.

Slide graphics included in this blog are directly from the USACE’s presentation on September 28, 2021 titled, “Maryland State Programmic General Permit (MDSPGP-6) Training.”  

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If you have a project authorized under MDSPGP-5 that needs reauthorization, or if you have questions about the MDSPGP-6, how your projects might be affected by it, or other Maryland permitting questions, please contact us. If you’re interested in learning more about the wide variety of engineering and environmental services Princeton Hydro offers, go here: princetonhydro.com/services.

Blog Author: Duncan Simpson, PWS

For over a decade, Duncan has served as an Environmental Scientist/Planner in the Mid-Atlantic Region. His experience includes a wide range of natural resource studies, documentation, and permitting at both the project and program level. He has special expertise in wetlands; Waters of the US delineations; and permitting for stormwater management facilities, stream restoration, and TMDL program projects. Duncan is a certified Professional Wetland Scientist, a member of the Society of Wetland Scientists, and earned his Maryland Biological Stream Survey (MBSS) Fish Crew Leader certification. He is the only person to have earned this prestigious certification in 2020. He also successfully completed the MBSS Physical Habitat Assessment.

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