By: Kai Hardy* 

I.          Introduction

In May 2023, the United States Supreme Court decided a case that accomplished far more than resolving the dispute of the parties: stripping millions of acres of the nation’s wetlands— “the livers and heart of our ecosystems”—of federal protection.[1] By limiting the number of wetlands protected under the Clean Water Act (“CWA”), the Court effectively punted the responsibility of wetlands regulation to state, local, and tribal governments.[2] That is, if they choose to regulate wetlands at all.[3]

Many states have comprehensive wetlands programs that pre-date the Court’s decision in Sackett v. EPA. Several of those states even strengthened their programs in response to Sackett.[4] However, other states deregulated wetlands by protecting only the wetlands covered under the Sackett Court’s interpretation of the Clean Water Act, which sets the federal baseline for state water quality standards.[5] Ultimately, the Court’s decision transformed what was once a sophisticated and uniform national system of wetlands regulation into a patchwork of individual state programs.[6] This post-Sackett system of state regulatory regimes poses both legal and practical management challenges for wetlands and ephemeral streams, which know no jurisdictional boundaries.

Maryland is a state with a comprehensive wetlands program that requires permits to conduct certain activities in both tidal[7] and isolated nontidal wetlands.[8] In 2024, the state improved its program  by granting standing to any party injured by a violation of state water quality laws.[9] Despite the enactment of this legislation, several additional legal and nonlegal mechanisms could strengthen wetland protection in the Old-Line state. The responsible management of Maryland’s wetlands could leverage the state’s key ecosystem services, including flood control, which is becoming increasingly critical as sea levels rise.

Regardless of how states generally move forward managing wetlands post-Sackett, policymakers should pursue equity in all management decisions by engaging with all community members, especially Indigenous communities and others with environmental justice concerns.[10] This inclusive approach would honor the communities’ expertise and comply with state and federal environmental justice policies.[11] Using an equity lens with Maryland, this article will analyze several legal approaches that could fill the gaps in wetlands management left by Sackett.

Part II provides a background on the ecosystem benefits and services provided by Maryland’s wetlands, including the Chesapeake Bay.[12] This section also assesses the overall challenge the Sackett decision presents across the United States, emphasizing the impact on Maryland’s wetlands.[13] Part III discusses the history of the CWA and its role in federal regulation of wetlands.[14] This section also analyzes the Sackett holding and assesses the current effects of the decision.[15] Lastly, this section provides an overview of Maryland’s wetlands laws, including the Tidal Wetlands Act, the Nontidal Wetlands Protection Act, and the Clean Water Justice Act.[16]

Finally, Part IV will analyze each of the legal mechanisms available to Maryland and other jurisdictions that could bolster their respective wetlands regulatory programs.[17] Part IV will also analyze the following legal mechanisms: (1) establishing a citizen suit provision for the enforcement of state wetlands laws; (2) amending the State constitution by enacting a right to a healthy environment; (3) enhancing the enforcement of wetlands permits; and (4) leveraging state land use laws to protect wetlands.[18] However, no matter which is chosen, policymakers must incorporate equity to build resilient solutions.[19]

II.        Maryland’s Wetlands

Wetlands are some of Maryland’s most abundant and valuable natural features.^[20] Moreover, the Chesapeake Bay wetlands are some of the most significant wetland areas in the nation.^[21] Despite their ecological significance, wetlands have long been viewed as mere “wastelands” best used through reclamation projects.^[22] While this utilitarian view of wetlands led to their widespread degradation in Maryland and other states,^[23] the perception of wetlands began to shift in the late twentieth century. Now, most people recognize the function of wetlands in the environment, and there is significant public support for protecting wetlands.[24]

In addition to their immeasurable ecological benefits, Maryland’s wetlands provide flood protection, which is a critical function shielding communities from rising sea levels. Along Maryland’s Chesapeake and Atlantic coasts, wetlands act as the first line of defense against rising sea levels and storm surges.[25] According to the Maryland Department of Natural Resources, flood protection is the largest individual ecosystem service the State’s wetlands provide, offering nearly $6 billion worth of benefits each year—three times the monetary value of benefits recreation and wildlife protection provide.[26] Additionally, wetlands hinder the “forces of climate change by improving air quality, providing shade, reducing heat, and filtering stormwater runoff.”[27] These ecosystem services provided by wetlands are uniquely valuable in Maryland as the state sits in one of the nation’s regions most vulnerable to climate change.[28] Wetland protection, therefore, will continue to be a key coastal climate adaptation tool for Maryland and other coastal jurisdictions.

The Supreme Court’s Sackett decision threatens to disrupt the State’s wetland management regime.[29] As Justice Kavanaugh lamented in his concurring opinion, “federal protection of the Chesapeake Bay might be less effective if fill can be dumped into wetlands that are adjacent to (but not adjoining) the bay and its covered tributaries.”[30] One estimate indicates Maryland wetlands that lost protection under the Sackett Court’s interpretation of the Clean Water Act have the capacity to store 285 to 605 billion gallons of water.[31]  To effectively fill the gaps the Sackett decision left and protect communities from climate change catastrophes, Maryland and other coastal states must use the legal and nonlegal tools at their disposal.[32] Moreover, a comprehensive wetland management policy will likely require states to begin implementing a combination of those tools.[33]

Finally, the chosen mechanisms must be equitable.[34] Home to several Indigenous communities and a majority-minority population, Maryland has a long history of persisting social and environmental injustices.[35] It is particularly wise and equitable from a policy perspective to bring Indigenous communities to the table when engaging in post-Sackett wetlands management decision-making because many Indigenous cultures see water, including wetlands, as a deep spiritual element.[36] To Native cultures, all water is a sacred, life-giving resource worth cherishing and protecting.[37] Additionally, Native populations have long engaged in wetland usage that is far more sustainable than that of the arriving Europeans who took control.[38] Therefore, allowing tribal communities—the first Marylanders—to be the drivers of wetlands regulatory reform likely would result in sound policy decisions and facilitate a culture of equitable policymaking in the state.[39] Together, leveraging local knowledge and experiences[40] while honoring state and federal environmental justice policies will lead to a more holistic management approach.[41]

III.       Legal Background on Federal and State Wetland Law

1. Federal Wetlands Regulation

1. The Clean Water Act of 1972

In 1972, Congress enacted the Clean Water Act (“CWA” or “Act”) to “restore and maintain the physical, chemical and biological integrity of the Nation’s waters.”[42] The CWA was groundbreaking because, prior to its enactment, water pollution regulation was comprised of a patchwork of state regimes, which was largely ineffective in improving water quality.[43] The Act was ambitious, seeking to eliminate “the discharge of pollutants into the navigable waters . . . by 1985.”[44] This aspirational target reflected the legislature’s urgency to address water pollution and commitment to create fast improvements. Of the CWA’s many programs, the two primary pollution control programs that apply to wetlands are: (1) the National Pollutant Discharge Elimination System (“NPDES”) and (2) the Section 404 “dredge-and-fill” program.[45] Of the two programs, the 404 program is most often at issue in wetland cases.[46]

The NPDES program prohibits the discharge of a pollutant from a point source into navigable waters without first obtaining a permit from the U.S. Environmental Protection Agency (“EPA”) or a state analogue with authorization to administer the program.[47] The Section 404 “dredge-and-fill” program prohibits the discharge of dredged or fill material into navigable waters without first obtaining a permit from the U.S. Army Corps of Engineers.[48] In both programs, the permitting requirements apply only when a discharge will occur in “navigable waters,” which the CWA nebulously defines as “waters of the United States [(“WOTUS”)], including the territorial seas.”[49]

1. Wetlands Litigation Under the Clean Water Act

As one might expect from a vague definition, the scope of WOTUS has been a contentious issue, especially in the context of wetlands, leading to nearly four decades of litigation.[50] The Supreme Court has decided four major cases addressing wetlands within the scope of WOTUS, and in each case, the Court has continued to narrow the scope of federal wetlands coverage.[51] In its most recent wetlands case, Sackett v. EPA, the Court laid an enormous blow to the 404 program, wrapping up a gradual, decades-long judicial defanging of the CWA—a law once viewed by Congress as urgent and protective.[52]

The Sackett Court held that the CWA covers wetlands only if they have a “continuous surface connection” to traditional, “relatively permanent” bodies of water—e.g., oceans, lakes, and rivers—and are “indistinguishable” from those waters.[53] Wetlands that lack a “continuous surface connection,” which likely includes some tidal wetlands and nearly all nontidal, isolated wetlands, are not covered under the CWA.[54] Post-Sackett, those wetlands are only  protected if a state choose to regulate them.[55]

Sackett was divisive amongst the Justices, split 5-4.[56] All nine of the Justices agreed the wetlands on the Sacketts’ property did not constitute WOTUS and were, therefore, not covered under the CWA.[57] The point of contention, however, was the test for determining whether a particular wetland is subject to federal jurisdiction.[58] The majority opinion, authored by Justice Alito, endorsed the “continuous surface connection” test.[59] Justice Thomas joined Justice Alito’s majority opinion but wrote separately to emphasize the consistency of the majority opinion’s interpretations in relation to the U.S. Constitution’s Commerce Clause.[60] Justice Kavanaugh concurred only in judgment and criticized the Court’s adoption of the “continuous surface connection” test.[61] He argued that the majority’s test “departs from the statutory text, from 45 years of consistent agency practice,” and from Supreme Court precedent, therefore having “significant repercussions for water quality and flood control.”[62] Justice Kagan concurred only in judgment, lamenting the Court’s apparent policymaking.[63]

ii. Sackett’s Legacy

Sackett essentially punted to states and localities the discretion to regulate wetlands that fall outside the scope of the CWA.[64] In response, some states enacted more stringent wetlands laws while others incorporated Sackett’s definition into their state codes.[65] Because the Court’s definition of jurisdictional wetlands is ambiguous and decided without an understanding of hydrological connections, it is unclear exactly how many wetlands lost federal protection due to Sackett.[66] However, some scientists have estimated estimate that the ruling has threatened over half of all wetlands in the United States.[67] Wetlands and streams in the arid West were disproportionately affected, as waters in that region tend to be more ephemeral and intermittent than those in the more humid East.[68]

b. Federal Wetlands Regulation

1. Tidal Wetlands Act of 1970

Maryland’s protection of tidal wetlands predates the Clean Water Act.[69] In 1970, the General Assembly recognized that many of the state’s wetlands had been lost or degraded, largely because of unregulated dredging, dumping, and filling, leading to the destruction of over 1,000 acres of wetlands annually throughout the Tidewater region.[70] The legislature feared that unregulated activities would “affect adversely, if not eliminate entirely, the value of the wetlands as a source of nutrients to finfish, crustaceans, and shellfish of significant economic value” and would “destroy the wetlands as a habitat for plants and animals of significant economic value and eliminate or substantially reduce marine commerce, recreation, and aesthetic enjoyment.”[71] These concerns prompted the  enactment of the Tidal Wetlands Act (“TWA” or “Act”), a law designed to “preserve the wetlands and prevent their despoliation and destruction.”[72]

The TWA requires a license or permit for construction and development in tidal wetlands.[73] The Act differentiates between State and private wetlands, requiring a license for activities conducted in State wetlands and a permit for activities occurring in private wetlands.[74] Licenses are issued by the State’s Board of Public Works based on recommendations from the Maryland Department of the Environment’s Water Management Administration (“WMA”).[75] A person must obtain a permit or license before filling, dredging, or otherwise altering a tidal wetland.[76] The WMA will then issue the permit directly to the applicant.[77] Typical projects requiring a TWA license or permit include shoreline protection projects,[78]piers, dredging, and stormwater discharges.[79]

Although the TWA allows construction and development activities in tidal wetlands under a license or permit, mitigation is required and varies based on the project’s environmental impacts.[80] The WMA evaluates applications to ensure the applicant will take the appropriate steps to first avoid and minimize a project’s impacts to tidal wetlands.[81] For unavoidable impacts, the Act requires mitigation based on the resources impacted, type of mitigation proposed, and location of mitigation.[82] Such robust mitigation requirements reflect the Act’s goal of restoring wetlands that human activities have destroyed or altered.

The TWA contains several key exceptions to its licensing and permitting requirements: (1) The drainage of agricultural lands; (2) The dredging of seafood products if conducted by a DNR-licensed operator; and (3) The harvesting of submerged aquatic vegetation if no dredging is involved.[83] Despite these exemptions, the Act’s programs have “limited the loss of vegetated tidal wetlands to less than one acre per year.”[84] In fact, Maryland’s 2016-2020 Wetland Program Plan cites “a net gain in tidal wetlands through mitigation and enhancement projects.”[85]

ii. Nontidal Wetlands Protection Act of 1989

The 1987 Chesapeake Bay Agreement (“CBA” or “Agreement”) initially spurred Maryland’s regulation of nontidal wetlands.[86] In the Agreement, Maryland committed to increasing the protection of nontidal wetlands by December 1988.[87] To honor its commitment, the State established a special task force to develop a comprehensive wetland policy, which eventually recommended a new state law to address continued wetland loss and to strengthen an inefficient existing regulatory framework.[88]

In the 1989 enactment of the Nontidal Wetlands Protection Act (“NWPA” or “Act”), the Maryland General Assembly endorsed the task force’s recommendation, recognizing that nontidal wetlands are vital for protecting the Chesapeake Bay, filtering pollution, controlling floods, and providing wildlife habitat.[89] The NWPA sought to “protect the [nontidal wetlands] or waters of the State through a comprehensive, statewide nontidal wetland program,” and strove to obtain “a net resource gain” in nontidal wetlands.[90] The Act also intended to ensure “no net loss” in wetlands acreage by requiring mitigation or compensation for wetland losses.[91]

The General Assembly designed the NWPA to mirror several core elements of Section 404 of the federal CWA.[92] The Act requires a license or permit for certain activities, including: (1) the removal, excavation, or dredging of soil materials, (2) changing existing drainage or flood retention characteristics, (3) disturbance of the water level or water table by drainage, impoundment, or other means, (4) filling, dumping, discharging material, driving piles, or placing obstructions, (5) the grading or removal of material that would alter existing topography, and (6) destruction or removal of plant life.[93] However, the NWPA differs from the CWA in three respects. Unlike the CWA, the NWPA regulates isolated wetlands.[94] The NWPA also regulates the alteration, hydrology, and vegetation of nontidal wetlands.[95] Lastly, the Act regulates activities occurring within a 25-foot buffer surrounding nontidal wetlands, which is expanded to 100 feet for “nontidal wetlands of special State concern.”[96] These differences between the state and federal wetlands programs indicate that Maryland intended the NWPA to close the loopholes in the federal program.[97]

Additionally, the Act requires a person to obtain state approval before conducting a regulated activity in, or near, a nontidal wetland or its buffer.[98] The NWPA exempts certain activities such as agriculture and forestry.[99] These activities do not require a permit or Letter of Authorization.[100] Certain other activities are exempt and may only require, under specific circumstances, an authorization that verifies the exemption.[101]

Under the Act, “the permittee is required to mitigate all unavoidable permanent impacts for projects impacting 5,000 ft² of wetlands, all nontidal wetlands impacts to areas with significant plant or wildlife value, and locations within the Chesapeake and Atlantic Coastal Bays Critical Area.”[102] For projects impacting less than 5,000 ft² of nontidal wetlands, the state, using the Nontidal Fund, will mitigate in place of the permittee.[103] As a result of the NWPA and its strong mitigation requirements, Maryland has achieved a net gain in nontidal wetlands acreage since the permitting program took effect in 1991.[104] The NWPA was also enhanced during the 2024 legislative session.[105]

iii. Nontidal Wetlands Protection Act of 1989

The Clean Water Justice Act (“CWJA” or “Act”) reinforced Maryland’s wetlands programs by adding a citizen suit provision, which allows “prevailing” and “substantially prevailing” plaintiffs to recover litigation costs.[106] The Act was a critical addition to Maryland law. Before its enactment, the state was the only party authorized to bring an enforcement action against persons violating wetlands laws despite its limited capacity.[107] Despite the State’s budget and staffing constraints, the absence of a citizen suit provision in state wetlands laws was not as salient before Sackett because most state wetlands were also protected under the federal Clean Water Act (“CWA”), which contains a public right of action.[108] Therefore, prior to Sackett, the public could sue to protect state wetlands by invoking the CWA’s citizen suit provision, which helped alleviate the State’s hefty enforcement burden.[109] However, Sackett narrowed the scope of wetlands protected under the CWA, eliminating the public’s right to enforce protection for wetlands the Court deemed uncovered. Waterkeepers Chesapeake commented on how the Sackett decision’s de facto removal of Marylanders’ rights to enforce State wetlands laws exacerbated the state’s water pollution enforcement capacity limitations:

Maryland has been unable to keep up with . . . water quality violations due to staff shortages and a constantly withering budget, so the citizen suit provision in the federal Clean Water Act . . . has been a critical backstop to protect our waterways and communities from pollution. The Clean Water Justice Act ensures that Marylanders can protect their waterways when the government [does not].[110]

CWJA co-sponsor, Senator Malcolm Augustine, clarified that the Act “is a remedy for the loss of the enforcement mechanism provided by the [federal Clean Water Act’s] citizen suit [provision].”[111] Senator Augustine stressed that citizens are “additional eyes and ears with the ability to take action to make sure that the polluters are held accountable.”[112]

In addition to increasing enforcement capacity, the CWJA also indirectly addressed climate adaptation and environmental justice concerns, particularly in Maryland’s rural regions.[113] According to Waterkeepers:

On the Eastern Shore where climate change is disproportionately impacting low-lying, frontline communities, non-tidal wetlands and ephemeral and intermittent streams play a significant role in protecting from pollution and downstream flooding. The CWJA makes it certain that communities on the Shore can protect themselves from any destruction or pollution to those waterways.[114]

Ultimately, the CWJA restored the wetlands enforcement landscape in Maryland to pre-Sackett status. Although the Act has several benefits for public water rights, climate adaptation, and environmental justice, the CWJA has several key deficiencies.[115]

IV.       Wetlands Protection Approached for Post-Sacket Maryland

Maryland can enact legislation that imposes more rigorous permit requirements and covers more types of waters to fill the gaps in wetlands protection Sackett left. Maryland’s existing statutes provide a more comprehensive wetlands management program than most other states.[116] For example, the Tidal and Nontidal Wetlands Protection Acts require a permit to conduct activities on most types of wetlands in the state, including certain isolated wetlands not covered under the Clean Water Act.[117] However, the State could further enhance its wetlands protection legal regime by: (1) Strengthening the CWJA to include groundwater; (2) Amending the State constitution to guarantee Marylanders a right to a healthy environment; (3) Enhancing enforcement of wetlands permits; and (4) Leveraging the Critical Area Law and local home rule land use authority to protect wetlands. However, legislation is not always the most useful tool for protecting wetlands, as policy constraints can interfere with the full implementation of statutes. Therefore, this article notes the potential drawbacks of each legal strategy.

1. Federal Wetlands Regulation

The Clean Water Justice Act (“CWJA”) established a citizen suit provision for violations of state water quality laws, including the Nontidal Wetlands Protection Act. Despite the CWJA’s benefits for wetlands and ephemeral and intermittent streams, the Act does not address groundwater contamination.[118] Groundwater protection is essential because it is a major drinking water source, particularly in Maryland’s rural communities, and operates as a hydrological connection between wetlands.[119] Maryland’s wetlands give and take water from the groundwater system.[120] According to the MDE:

Nearly all of Maryland’s wetlands are ground water discharge areas, at least for some portion of the year . . . Ground water discharge helps maintain a wetland’s water balance and water chemistry. This wetland function is also critical to the formulation of hydric soils and the maintenance of ecosystem habitats in different types of wetlands.[121]

Although the CWJA does not provide a public right of action for groundwater pollution violations, Maryland’s inclusion of “underground waters” in its definition of “Waters of the State” reflects the Maryland’s acknowledgment of the importance of regulating groundwater quality.[122] Yet, under the current statutory landscape, residents have no right to seek a judicial remedy for groundwater discharge violations.[123]

Maryland has a comprehensive permitting program for groundwater discharges, but a citizen suit provision would increase its enforcement potential.[124] Currently, any entity seeking to apply treated wastewater onto lands by spraying, groundwater injection, or similar means must first receive a groundwater permit from the MDE.[125] To control wastewater volume in their treatment and storage facilities, wastewater treatment plant operators regularly apply for groundwater discharge permits to spray treated water on agricultural lands to fertilize crops.[126] The treated wastewater contains nitrates, which are essential nutrients for plant growth.[127] However, nitrates raise several key environmental concerns.

First, nitrates can contaminate groundwater, which is a major source of drinking water on Maryland’s Eastern Shore.[128] Indeed, scientists have linked nitrate ingestion to several adverse health conditions, including methemoglobinemia—“Blue Baby Syndrome”—in infants.[129] Second, excess nitrogen in surface waters can cause algal growth and eutrophication, damaging aquatic ecosystems, including wetlands.[130] Thus, the health and environmental hazards nitrates pose jeopardize Maryland’s groundwater supply on which Marylanders and wetlands depend.

The CWJA’s exclusion of groundwater is significant because groundwater is not covered under the federal CWA either.[131] Therefore, when a groundwater discharge permit violation is causing a Marylander a legally cognizable injury, they are unable to seek redress because neither the federal CWA nor the CWJA apply to groundwater. Instead, the affected party must depend on MDE bringing an administrative enforcement action against the alleged groundwater permit violator.[132] Reliance on MDE for enforcement raises concerns because state agencies often have a limited capacity—e.g., funding, staff, time, political will—to investigate all potential violations.[133] Data indicates that Maryland’s administrative enforcement of water pollution violations is declining.[134] Maryland could introduce legislation allowing residents a right to sue to enforce groundwater pollution regulations.[135] For example, Maryland could either: (1) Expressly include the term “groundwater” in the Clean Water Justice Act—the state’s citizen suit statute; or (2) Adopt broad, sweeping language, like that of Michigan or New Jersey, allowing citizen suits for all water pollution violations, which would include groundwater.

b. Amending the State Constitution to Confer a Right to a Healthy Environment

Maryland can also amend its constitution, granting its residents a right to a healthy environment (“RHE”) to further protect wetlands.[136] Several states have adopted RHEs conferring citizens a rights to a “healthy” or “healthful” environment, typically including clean water, which presumably encompasses wetlands.[137] Some state RHEs give persons injured by environmental pollution or degradation standing to sue to enforce their rights.[138] If an RHE is carefully written, a Marylander could presumably invoke their right  by suing for groundwater pollution violations impacting wetlands—an unavailable strategy under the federal CWA and Maryland’s CWJA. Such an approach would be quite novel in the context of wetlands, as RHEs have rarely been used to protect wetlands.[139]

Maryland has attempted adopting an RHE into its constitution on several occasions.[140] Despite repeated efforts to create a RHE, all the proposed constitutional amendments have “died” in the General Assembly, largely due to strong opposition.[141] Thus, future bills reintroducing a RHE constitutional amendment must adequately address the concerns the opposition is raising.

However, RHEs have several legal and policy-related drawbacks. First, RHEs typically take a long time to gain legal meaning from the point of adoption.[142] Pennsylvania adopted a RHE into its constitution in 1971, but it was not until 2013 that the judiciary recognized that the RHE was legally enforceable.[143] Sometimes, the legal meaning will be limited or never recognized; for example, courts in Illinois and Massachusetts have held that their RHEs have limited judicial enforceability.[144] The length of time for—or nonexistence of—a judicial enforceability determination for a state RHE may be problematic from a policy perspective given the rapid rate of wetlands degradation and the uncertainty of state wetlands protection Sackett created. If the Maryland General Assembly explicitly establishes a separate cause of action, such as in the 2019, 2020, or 2021 RHE bills, it can avoid the enforceability question.[145] Second, constitutional amendment campaigns are often time, money, and energy intensive. Such resources might be more useful for community engagement, developing statutes, or strengthening enforcement capacity. Third, RHEs rarely play a direct role in wetlands protection. Although they may play an indirect role in bolstering active citizen engagement and deliberation, RHEs do not address the state budget and staffing shortages. Given these limitations, adopting an RHE could be a beneficial supplemental strategy for wetlands protection, but it would not be a replacement for addressing capacity-related policy concerns. Policymakers seeking to implement an RHE should tap into Indigenous expertise, as “rights of nature,” a related concept, is rooted in Indigenous culture.[146]

c. Enhancing Enforcement of State Wetlands Permit Violations

On paper, Maryland’s wetlands permitting regime is comprehensive and commendable.[147] However, in practice, inadequate enforcement arguably undermines the program’s effectiveness. Overall, Maryland has seen a decline in water permit enforcement over the past few decades.[148] This pattern may be attributable to MDE’s shrinking budget over that time span.[149] Between 2002 and 2022, MDE’s budget decreased by about one-third, which resulted in the loss of one out of every seven staff members.[150] The General Assembly could allocate more funds to MDE to mitigate these budgetary constraints. For example, Washington responded to Sackett’s strain on the State’s budget by requesting to appropriate additional funds to the Washington State Department of Ecology—MDE’s analogue.[151] Bolstering MDE’s budget through legislation will require political support and will likely result in a budgetary compromise in other sectors that are potentially equally as important.

A related enforcement issue arises when entities begin dredging and filling wetlands before seeking a discharge permit from MDE. These “free riders” apply for a permit only after their project has commenced, and anecdotal evidence suggests that MDE grants these “after-the-fact” permits with little to no penalty.[152] Issuing these permits disincentivizes compliance, rewarding violators by granting them a competitive advantage. Conversely, issuing after-the-fact permits penalize law-abiding developers and could lead to the degradation of wetlands before MDE has a chance to fully assess a project’s environmental footprint.

Although no official records suggesting the frequent issuance of after-the-fact wetlands permits exist, MDE’s permitting database indicates that MDE rarely denies water permits.[153] According to the data, MDE received 29,038 permit applications between 2011 and 2024 to conduct regulated activities in waters of the State.[154] Of the applications received, MDE issued 27,419 permits. While the MDE’s issuance rate of over 94% is alarming, it’s likely many of these permits imposed conditions that would lessen the project’s footprint—e.g., mandating mitigation.[155] The remainder of the permit applications have a status of “pending,” or “approval not required.”[156] Although inconclusive, such an extraordinarily high project approval rate offers some support to the anecdotal evidence of MDE’s liberal issuance of after-the-fact permits. It is highly unlikely that only five of the nearly 30,000 people applying for a water permit began working on their project prior to seeking a permit. The number is likely higher, and the data strongly suggests that MDE issues permits generously, likely even to those who attempt to circumvent the permitting regime.

Sackett indirectly opened the door for after-the-fact permit seekers in Maryland and other states with wetland permitting requirements. Under the federal Clean Water Act, after-the-fact permits are more adequately addressed by the statute’s language and EPA’s penalty policies for dredge-and-fill violations.[157] To address Maryland’s post-Sackett CWAwetland protection gap, the State could enact legislation that stiffens the penalties for seeking a permit only after conducting regulated activities in waters of the State. Such legislation could also increase the application fee and delay processing a permit application based on the severity of the violation. Further, the statute could expressly prohibit MDE from issuing an after-the-fact permit unless an enforcement action is brought or the requisite penalty is sought. Alternatively, the General Assembly could amend the CWJA to grant standing for citizens to mandate wetlands restoration for after-the-fact permit holders. Any of these legislative approaches would likely lead to a more stringent enforcement effort by MDE while deterring post hoc applicants from sidestepping the requirement to obtain a permit before conducting regulated activities in jurisdictional wetlands.

d. Enhancing Enforcement of State Wetlands Permit Violations

States, localities, and tribal governments leveraging existing local land use and zoning authority can further protect wetlands, and a handful of states have already taken this approach, including Maryland,[158] New York,[159] Vermont,[160] Washington,[161] and Virginia.[162] Typically, zoning ordinances focus on limiting development on land to protect water resources.[163] While some zoning laws restrict development only on lands adjacent to major bodies of water, others protect wetlands.[164] One of the State’s primary environmental land use tools—the Chesapeake and Atlantic Coastal Bays Critical Area Protection Program—can be leveraged to protect a variety of statewide water resources, including wetlands.[165]

The Maryland General Assembly enacted the Chesapeake and Atlantic Coastal Bays Critical Area Protection Program (“Critical Area Law” or “Law”) in 1984 after recognizing the threats unregulated development activities pose to water quality, wildlife habitat, and aquatic ecosystem functions of the Chesapeake Bay.[166] The Law defines the Critical Area as all “waters of and lands under the Chesapeake [and Atlantic Coastal Bays and their] tributaries to the head of tide[,] . . . all . . . wetlands designated [by statute,]” and all “land and water areas within 1,000 feet beyond the landward boundaries of . . . wetlands and the heads of tides designated [by law].”[167] The Critical Area Law also established a 100-foot vegetated buffer encompassing the areas closest to the Bay, its tributaries, and wetlands.[168] Most development activities are prohibited or severely restricted in the Buffer, and if permitted, mitigation and the submission of a Buffer Management Plan is typically required.[169]

The Critical Area Law established the Critical Area Commission (“CAC” or “Commission”)—an agency within the Maryland Department of Natural Resources—to oversee the program and enact regulations.[170] However, the Legislature designed the Law for local implementation, requiring  jurisdictions to develop their own Critical Area programs.[171] Each local program limits clearing activities and lot coverage in the Critical Area and Buffer, and the amount of development allowed depends on whether the proposed project site is located within: (1) an Intensely Developed Area, (2) a Limited Development Area, or (3) a Resource Conservation Area.[172] Notably, the Critical Area Law does not prevent localities from enacting zoning standards that are more restrictive than the Critical Area Law’s requirements—e.g., expanding the 100-foot Buffer to 200 feet.[173]

In 2008, the Maryland General Assembly amended the Critical Area Law when it enacted the Living Shoreline Protection Act (the “LSPA”), which requires entities to consider implementing a living shoreline—e.g., marsh creation, vegetation, oyster shells, or rocks—before seeking to build a structural shoreline stabilization project—e.g., seawall, bulkhead, or revetment.[174] Indeed, to build a structural erosion control project, a person must first receive a waiver from the MDE, which is only granted upon a determination that a living shoreline is infeasible for a particular property.[175] Living shorelines are critical for wetland sustainability and protection.[176] Their ecosystem services include shoreline stabilization, pollution filtering, wildlife habitat provision, and flood control, the latter of which will be increasingly vital as sea levels continue to rise in the Chesapeake Bay watershed.[177] Although the LSPA can be used as a tool to protect wetlands, MDE’s regular practice of granting waivers allows the construction of many structural projects instead of living shorelines, because MDE grants waivers regularly.[178]

In 2024, the General Assembly again amended the Critical Area Law to require localities to consider climate resiliency, environmental justice, and equity in their Critical Area programs, which was monumental because the Critical Area Law was originally a water quality-focused and ecosystem-focused statute.[179] With the 2024 amendments, in addition to filling wetlands protection gaps Sackett created, localities can—and are, in fact, required to—focus on addressing the social consequences of wetland loss and water pollution climate change is exacerbating. Although the amendment appears promising, the State must aid municipalities in implementing these changes by providing sufficient funding and technical assistance.

V.        Conclusion

In the aftermath of Sackett, Maryland and other coastal states can fill the gaps in protection and regulation using a variety of legal tools. Protecting wetlands is crucial in this age of sea level rise. Regardless of the wetlands management approach or combination of approaches, equity requires states and localities to allow underrepresented and overburdened groups—individuals who have played a vital role in the history and culture of the United States—to drive the policymaking process.

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* Kai is a deputy state’s attorney in Vermont, managing a diverse caseload that includes various misdemeanors, felonies, and fish and wildlife crimes. Previously, he was a Maryland Sea Grant Law and Policy Fellow, where he conducted legal research on coastal resilience, water quality, aquaculture, and climate justice, focusing on Maryland. As a fellow, he helped Maryland Sea Grant receive a grant to hold a symposium on the legal barriers to equitable coastal climate adaptation in the Chesapeake Bay region. He co-authored a guide to assist riparian property users in navigating the complex permitting process required for implementing living shorelines and other nature-based erosion control mechanisms. Kai researched PFAS regulations and prepared a regulatory reference guide for a conference hosted by the University of Maryland Extension. Kai clerked for the U.S. EPA Region 3, Office of Regional Counsel, working on a warrant application and memorandum for an alleged wetland permit violation and helping prosecute environmental crimes. Kai would like to thank the University of Baltimore Law Forum for publishing his article as part of their symposium. He would also like to thank Professor Sonya Ziaja, Nicole Cook, and Evan Isaacson for their unwavering support in developing this article.

[1] Denise Clearwater et al., An Overview of Wetlands and Water Resources of Maryland 7–8 (2000) https://mde.maryland.gov/programs/water/WetlandsandWaterways/AboutWetlands/Documents/www.mde.state.md.us/assets/document/wetlandswaterways/h2Oresources.pdf (Wetlands are “areas that hold water for significant periods during the year and are characterized by anaerobic (low oxygen) conditions favoring the growth of specific plant species and the formation of specific soil types . . . Wetlands may be permanently flooded by shallow water, permanently saturated by groundwater, or periodically inundated or saturated for varying periods during the growing season in most years.”); see also Advocacy in Action: Sackett v. EPA: The State of Our Waters One Year Later 3 (2024), https://protectcleanwater.org/wp-content/uploads/2024/05/CW4A_SvE_05.21.24d.pdf.

[2] See Advocacy in Action: Sackett v. EPA: The State of Our Waters One Year Later 6 (May 21, 2024) https://protectcleanwater.org/wp-content/uploads/2024/05/CW4A_SvE_05.21.24d.pdf.

[3] Rebecca Kihslinger et al., Navigating Newly Non-Wotus Wetlands: A Study of Six States’ Wetlands Programs after Sackett v. EPA  6 (2024), https://www.eli.org/sites/default/files/files-pdf/ELI%202024%20State%20Wetland%20Reports%20ES_0.pdf (noting that several state waters and wetland programs have relied on the CWA and other federal law).

[4] See Jade McClary, Protecting Navigable Waters One Year After the Supreme Court’s Sackett Decision, Nat’l Tr. for Hist. Pres.(June 20, 2024), https://savingplaces.org/stories/one-year-later-sackett-supreme-court.

[5] One Year After Key Supreme Court Decision, Almost Half of States Leave Many Wetlands Unprotected, Env’t Integrity Project (May 28, 2024), https://environmentalintegrity.org/news/year-after-supreme-court-decision-states-leave-many-wetlands-unprotected/.

[6] Kihslinger et al., supra note 3, at 6 (highlighting inconsistencies between state waters and wetlands programs post-Sackett because of varying definitions of waters of the United States).

[7] Md. Code Regs. 26.24.01.01.

[8] Md. Code Regs. 26.23.02.01.

[9] See Md. Code Ann., Env’t § 1-902 (West 2024).

[10] See discussion infra Part II.

[11] See discussion infra Part II.

[12] See discussion infra Part II.

[13] See discussion infra Part II.

[14] See discussion infra Part III.

[15] See discussion infra Part III.

[16] See discussion infra Part III.

[17] See discussion infra Part IV.

[18] See discussion infra Part IV.

[19] See discussion infra Part II.

[20] Clearwater et al., supra note 1, at 8–9 (discussing that Maryland is home to roughly 600,000 acres of vegetated wetlands that cover about 9.5% of the State’s land surface and the majority of Maryland’s wetlands exist on the Eastern Shore, particularly in Dorchester and Somerset Counties).

[21] Ralph W. Tiner & David G. Burke, Wetlands of Maryland, U.S. Fish & Wildlife Serv., Ecological Servs. 140 (1995), https://mde.maryland.gov/programs/Water/WetlandsandWaterways/DocumentsandInformation/Documents/www.mde.state.md.us/assets/document/WetlandsWaterways/MD_wetlands.pdf (Chesapeake Bay wetlands “have received worldwide recognition as ‘Wetlands of International Importance Especially as Waterfowl Habitat’ under the 45-nation Ramsar Convention treaty.”); see also The List of Wetlands of International Importance (2024), https://www.ramsar.org/sites/default/files/documents/library/sitelist.pdf.

[22] Tiner & Burke, supra note 21, at 1–2.

[23] Id.

[24] Clearwater et al., supra note 1, at 15–16 (“To date, the public has supported wetland protection efforts, by recognizing the important water quality, flood storage, wildlife habitat, and other functions that wetlands perform. It is likely this trend of government and public support will continue”).

[25] Strengthening Maryland’s Coasts, The Nature Conservancy (Feb. 22, 2024), https://www.nature.org/en-us/about-us/where-we-work/united-states/maryland-dc/stories-in-maryland-dc/mddc-how-we-work-resilient-coasts/.

• [26] Md. Dep’t Nat. Res., Maryland’s Return on Environment 1 (2017), https://dnr.maryland.gov/ccs/Documents/MDReturnOnEnvironmentFactSheet.pdf.

[27] Md. Comm’n on Climate Change Adaptation & Response & Sci. & Tech. Working Grps., Comprehensive Strategy for Reducing Maryland’s Vulnerability to Climate Change Phase II: Building Societal, Economic, and Ecological Resilience 12 (2011), https://dnr.maryland.gov/climateresilience/Documents/climatechange_phase2_adaptation_strategy.pdf.

[28] The Effects of Climate Change in Maryland, Univ. of Md Extension (Feb. 14, 2023), https://extension.umd.edu/resource/effects-climate-change-maryland/ (explaining that Maryland’s annual mean temperature has increased by over 2°F (1°C) since 1895, which is faster than the mean global rate of temperature increase and has exceeded its own average almost every year since 1997. The State also has seen an increase in precipitation.); see also Donald F. Boesch et al.,Sea-Level Rise Projections for Maryland 2023, at 1 (2023), https://www.umces.edu/sea-level-rise-projections (citing that Maryland’s 2023 Sea Level Rise Projections indicate that by 2050, the State will experience one to one-and-a-half feet of sea level rise experienced in the past century).

[29] See Estimating Federal Wetlands Protections in the Wake of a 2023 Supreme Court Decision, Env’t Def. Fund, https://experience.arcgis.com/experience/4ee055766699446485fd98bd9d539a37/page/Percent-States  (last visited Aug. 19, 2024); While debate exists among scholars and practitioners as to whether Sackett’s test for federal jurisdiction was clear, it is still unclear as to which of Maryland’s wetlands are no longer subject to the CWA’s permitting requirements. See John Kruzel & Andrew Chung, US Supreme Court Rules Against EPA in Wetlands Regulation Challenge, Reuters (May 25, 2023, 4:31 PM), https://www.reuters.com/legal/ussupreme-court-rules-against-epa-wetlands-regulation-challenge-2023-05-25/ (noting that Earthjustice shared an estimate of 90 million acres of wetlands affected by Sackett, including the Chesapeake Bay). This delineation will most likely be accomplished by a combination of scientific data collection and several years of litigation. Nonetheless, recent data suggests that if Sackett is best read as interpreting the Clean Water Act to cover wetlands that are seasonally flooded, then it is estimated that 308,000 to 320,000 acres of Maryland’s nontidal wetlands lost federal protection under Sackett, which is approximately 76 to 79% of the State’s total wetlands acreage. Estimating Federal Wetlands Protections in the Wake of a 2023 Supreme Court Decision, supra note 29.

[30] Sackett v. United States Env’t Prot. Agency, 598 U.S. 651, 726 (2023) (Kavanaugh, J., concurring).

[31] See Estimating Federal Wetlands Protections in the Wake of a 2023 Supreme Court Decision, supra note 29 (noting that this estimate varies depending on which wetlands will lose protection under Sackett).

[32] See discussion infra Part IV.

[33] See discussion infra Part IV.

[34]See Megan McConville, Creating Equitable, Healthy, and Sustainable Communities: Strategies for Advancing Smart Growth, Environmental Justice, and Equitable Development, at i (2013), https://www.epa.gov/sites/default/files/2014-01/documents/equitable-development-report-508-011713b.pdf (“Regional and local planners are engaging low-income, minority, and tribal residents in decision-making and producing more enduring development that is better for people and the environment.”); see also Equitable Adaptation Legal & Policy Toolkit: Community-Driven Engagement Processes, Geo. Climate Ctr., https://www.georgetownclimate.org/adaptation/toolkits/equitable-adaptation-toolkit/community-driven-engagement-processes.html (“By engaging the community at an early stage and throughout the planning process, policymakers can gain significant insights from public input while decreasing the likelihood that a project will face negative opposition from a community.”).

[35] See, e.g.,The Nature Conservancy, Supporting Equitable Access to Funding for Adaptation Resources  10 (2024), https://www.nature.org/content/dam/tnc/nature/en/documents/SEAFARE_Report_TNC_Maryland_May_2024.pdf (“Maryland’s African American Communities, particularly on the Eastern Shore, are extremely vulnerable to sea level rise and other impacts of climate change due to institutional racism . . . Maryland’s history of racial segregation and systemic discrimination compelled many African Americans to build their life and homes on the flood-prone lands of the Eastern Shore.”).

[36] See BasVerschuuren, Religious and Spiritual Aspects of Wetland Management, in The Wetland Book 1405, 1410 (Max C. Finlayson et al. eds., 2016).

[37] Id.

[38] Tiner & Burke, supra note 21, at 171 (noting that traditional uses of wetlands can preserve wetlands).

[39] The first Marylanders were Indigenous residents who arrived more than 10,000 years ago from other parts of North America. Native Americans of Maryland, Women Hist. Blog (June 2008), https://www.womenhistoryblog.com/2008/06/native-americans-of-maryland.html. By 1000 B.C., Maryland was home to more than 8,000 Native Americans in about 40 different tribes. Id. Most of them spoke Algonquian languages. Id. These communities include the Piscataway, the Nanticoke, the Choptank, and the Accohannock. Id.

[40] See Equitable Adaptation Legal & Policy Toolkit: Community-Driven Engagement Processes, supra note 34 (“By engaging the community at an early stage and throughout the planning process, policymakers can gain significant insights from public input while decreasing the likelihood that a project will face negative opposition from a community.”).

[41] See, e.g.,Md. Dep’t of the Env’t, Environmental Justice Policy and Implementation Plan 1 (2022), https://mde.maryland.gov/Environmental_Justice/PublishingImages/Pages/Landing%20Page/Environmental%20Justice%20Policy%20and%20Implementation%20Plan%202022.pdf (Maryland has an environmental justice policy and implementation plan, which defines “environmental justice” as “equal protection from environmental and public health hazards for all people, regardless of race, income, culture, and social status.”); see also Md. Code Ann., Env’t § 1-601.1 (LexisNexis 2022) (The State also requires certain permit applicants to include in their application the Environmental Justice Score (based on Maryland’s EJ Screening Tool) of the census tract where the applicant is seeking a permit.); Exec. Order No. 14008, 86 Fed. Reg. 7619 (Jan. 27, 2021) (showing that the Biden-Harris Administration’s Justice40 initiative aims for forty percent of climate-related federal investments to flow marginalized, underserved, and overburdened communities.); Environmental Justice, Md. Dep’t Env’t, https://mde.maryland.gov/Environmental_Justice/Pages/Landing%20Page.aspx (last visited Aug. 20, 2024) (“Maryland consistently meets [Justice40’s] goals and is going above and beyond.”).

[42] 33 U.S.C. § 1251(a).

[43] The Clean Water Act’s predecessor—the Federal Water Pollution Control Act of 1948—had several shortcomings, including a lack of sufficient funding, considerable deference to state programs, and the absence of federal enforcement powers. Indeed, the federal role was limited to “supporting state and local agencies in their water pollution abatement efforts through research, technical services, and financial assistance.” N. William Hines, History of the 1972 Clean Water Act: The Story Behind How the 1972 Act Became a Capstone on a Decade of Extraordinary Environmental Reform, 4 Geo. Wash. J. Energy & Env’t L. 80, 90 (2013).

[44] 33 U.S.C. § 1251(a)(1).

[45] Clean Water Act, Nat’l Assoc. Of Wetland Managers, https://nawm.org/wetlands-law/cwa (last visited Dec. 25, 2024) (“The CWA establishes two principal permitting programs authorizing discharge into [waters of the United States] WOTUS. The first is the section 404 permit program that regulates discharges of dredged or fill material. The second permitting program is the CWA section 402 National Pollutant Discharge Elimination System (NPDES).”).

[46]See generally Env’t Proct. Agency, Wetland Regul. Auth., https://www.epa.gov/sites/default/files/2015-03/documents/404_reg_authority_fact_sheet.pdf.

[47] 33 U.S.C. §§ 1311, 1342.

[48] 33 U.S.C. § 1344.

[49] 33 U.S.C. § 1362(7).

[50] Definition of “Waters of the United States”: Rule Status and Litigation Update, Env’t Proct. Agency (Oct. 21, 2024), https://www.epa.gov/wotus/definition-waters-united-states-rule-status-and-litigation-update (noting the background of litigation surrounding WOTUS before the Sackett decision). 

[51] In U. S. v. Riverside Bayview Homes, Inc., the Supreme Court held that the CWA covers wetlands immediately adjacent to traditionally navigable waters, even if the wetlands themselves are not navigable in fact. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 139 (1985). The Court clarified its WOTUS definition in a subsequent case, holding that the term does not include intrastate “isolated ponds, some only seasonal,” where the asserted basis for federal jurisdiction was the fact that migratory birds used them. Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Engineers, 531 U.S. 159, 171–72 (2001). Five years later, the Court issued a fractured opinion (which contained no majority opinion) deciding which types of wetlands constitute WOTUS. The plurality, authored by Justice Scalia, held that wetlands are covered under the CWA only if they have a “continuous surface connection” with “relatively permanent” bodies of water. Rapanos v. United States, 547 U.S. 715, 742 (2006). Justice Kennedy wrote a concurring opinion criticizing the plurality opinion for having adopted too narrow of a WOTUS test with respect to wetlands. Justice Kennedy instead endorsed the “significant nexus” test, which would include wetlands as WOTUS if they had a “significant nexus,” but not necessarily a continuous surface connection, to a traditionally navigable water. Id. at 779 (Kennedy, J., concurring). The four dissenters argued that the plurality’s test was too narrow. See id. at 788 (Stevens, J., dissenting).

[52] Jeff Turrentine, What the Supreme Court’s Sackett v. EPA Ruling Means for Wetlands and Other Waterways, Nat’l Res. Def. Council (June 5, 2024), https://www.nrdc.org/stories/what-you-need-know-about-sackett-v-epa (“Congress intended the phrase to be interpreted very broadly . . . they . . . understood the fundamental interrelatedness of these different bodies of water.”).

[53] Sackett v. U.S. Env’t Prot. Agency, 598 U.S. 651, 678-79 (2023).

[54] James M. McElfish, What Comes Next for Clean Water? Six Consequences of Sackett v. EPA, Env’t L. Inst. (May 26, 2023), https://www.eli.org/vibrant-environment-blog/what-comes-next-clean-water-six-consequences-sackett-v-epa.

[55] See Sackett, 598 U.S. at 683.

[56] Turrentine, supra note 52.

[57] Id.

[58] Sackett, 598 U.S. at 678-79, 710, 716 (Thomas, J. & Kavanaugh, J., concurring).

[59] Sackett v. U.S. Env’t Prot. Agency, 598 U.S. 651, 678-79 (2023).

[60] Id. at 709–10 (Thomas, J., concurring).

[61] Id. at 716 (Kavanaugh, J., concurring) (noting the “distinct meaning” of “adjacent” and “adjoining” wetlands that both require regulation under the CWA to protect water quality).

[62] Id.

[63] Id. at 715 (Kagan, J., concurring).

[64] See Sackett, 598 U.S. at 683.

[65] Several states strengthened their wetlands programs following the Sackett decision. For example, Colorado established its own dredge-and-fill permitting program for state wetlands. H.R. 24-1379, 74th Gen. Assemb., 2d Reg. Sess. (Colo. 2024); Maryland established a citizen suit provision for violations of State wetlands and waterways protection laws. Clean Water Justice Act of 2024,  Md. Code Ann., Env’t §§ 1-901–1-904 (LexisNexis 2024). Washington State responded by requesting, and receiving, approximately $2.4 million to meet increased workload demands for permitting for waters no longer covered under the federal CWA. Wash. State Dep’t Of Ecology, Governor Inslee’s 2024 Supplemental Budget – Operating 6 (2024), https://ecology.wa.gov/getattachment/00549cb5-ce6b-442f- 8e40-056c136d9688/2024GovSupplementalOperati. Conversely, some states like Missouri and Tennessee proposed wetlands deregulation statutes. S.B. 981, 102nd Gen. Assemb., 2nd Reg. Sess. (Mo. 2024); H.R. 1054, 113th Gen. Assemb. (Tenn. 2024).

[66] Wetlands and Streams Most in Danger After the U.S. Supreme Court‘s Sackett v. EPA Ruling, Earthjustice (May 14, 2024), https://earthjustice.org/feature/sackett-epa-wetlands-supreme-court-map (noting that there are “at least 290 million acres of wetlands . . . [and] millions of acres of wetlands have now lost protections[, but the] impacts of this staggering loss of protections are incalculable.”). 

[67] See Jo Vonderhorst, Sackett v. EPA: When “Adjacent” Means “Contiguous” and Property Rights Eclipse Clean Water Act Protections, 83 Md. L. Rev. 985, 1013 (2024).

[68] Wetlands and Streams Most in Danger After the U.S. Supreme Court‘s Sackett v. EPA Ruling, supra note 66 (“Over 75% of streams [are] classified as ephemeral or intermittent: Kansas, Missouri, Montana, North Dakota, Nebraska, South Dakota, Texas, Utah, Wyoming. Over 90% of streams [are] classified as ephemeral or intermittent: New Mexico, Nevada.”); see also Lainie R. Levick et al., The Ecological and Hydrological Significance of Ephemeral and Intermittent Streams in the Arid and Semi-arid American Southwest 9 (2008) (explaining the differences in ephemeral and intermittent streams in the West and the humid East, including the instability of Eastern streams).

[69] Md. Code Ann., Env’t § 16-102(b) (LexisNexis 2023).

[70] Env’t § 16-102(a); see also High Resolution Shoreline Map Data for Tidewater Maryland, Md. Geological Surv., http://www.mgs.md.gov/coastal_geology/hi%20res%20shoreline.html (last visited Dec. 31, 2024) (Tidewater Maryland map).

[71] Env’t § 16-102(a)(1)–(2) (emphasis added).

[72] Env’t  § 16-102(b).

[73] Md. Code Ann., Env’t § 16-202(a) (LexisNexis 2024); see also Md. Code Ann., Env’t § 16-307(a)(1) (LexisNexis 2024).

[74] Env’t §§ 16-202(a), 16-307(a)(1).

[75] Env’t § 16-202(f); Md. Code Regs. 26.24.01.01(C).

[76]  Env’t §§ 16-202(a), 16-307(a)(1).

[77] Env’t § 16-307(b).

[78] Typically, these projects include marsh creation, stone revetments, and bulkheads that create storm barriers and prevent shoreline erosion. The Pew Charitable Trs., Maryland’s ‘Living Shorelines’ Help Communities Become Resilient 2–3 (2019), https://www.pewtrusts.org/-/media/assets/2019/11/marylands_living_shorelines_brief_final.pdf.

[79] Md. Dep’t of the Env’t, Maryland Wetland Program Plan 2016-2020 4 (2018), https://www.epa.gov/sites/default/files/2018-03/documents/maryland_de_complete_final_rev2018_v4.docx_1.pdf [hereinafter Maryland Wetland Program Plan].

[80] Md. Code Regs. 26.24.05.01(B).

[81] Md. Code Regs. 26.24.01.01(A).

[82] See Md. Code Regs. 26.24.05.01B(4) (stating that MDE prefers in-kind mitigation and on-site mitigation (required whenever appropriate site conditions exist)).

[83] Md. Code Ann., Env’t § 16-202(h) (LexisNexis 2024); see also Md. Code Ann., Env’t § 16-307(a)(1) (LexisNexis 2024).

[84]  Maryland Wetland Program Plan, supra note 79, at 47.

[85] Id.

[86] U.S. Env’t Prot. Agency, 1987 Chesapeake Bay Agreement 2 (1987), https://d38c6ppuviqmfp.cloudfront.net/content/publications/cbp_12510.pdf (“To achieve this goal we agree . . . by December 1988, to develop a Bay-wide policy for the protection of tidal and non-tidal wetlands.” (emphasis added)).

[87] Id.

[88] See generally Md. Dep‘t of the Env‘t, Appendix II. Maryland’s Wetland Management Framework: History of Current Regulatory Programs, https://mde.maryland.gov/programs/water/WetlandsandWaterways/MDWetlandConservationPlan/Documents/www.mde.state.md.us/assets/document/wetlandswaterways/appendix_2fnl.pdf (last visited Dec. 26, 2024) [hereinafter Maryland’s Wetland Management Framework].

[89] Md. Code Ann., Env’t §§ 5-901–5-911 (West 2024); Env’t § 5-902(a) (“The General Assembly finds that nontidal wetlands play important roles in the preservation of the Chesapeake Bay” and “serve important roles through the reduction of pollutant loadings, including excess nutrients, sediment, and toxics, the attenuation of floodwaters and stormwaters, shoreline stabilization and erosion control, waterfowl breeding and habitat for many species of fish, game and nongame birds, and mammals, including rare and endangered species, food chain support, and timber production.”).

[90] Env’t § 5-902(b).

[91] Id.

[92] Maryland’s Wetland Management Framework, supra note 88, at 131.

[93] Env’t § 5-901(n).

[94] Env’t § 5-906(a)(2) (explaining that the activities occurring in isolated wetlands less than one acre and that lack significant plant or wildlife value are exempt from the Act’s permitting requirements; therefore, nontidal wetlands more than one acre or containing significant plant or wildlife value are protected under the Act); Under Sackett, the federal government has jurisdiction over wetlands only if the wetlands have a “continuous surface connection” to traditionally navigable waters—i.e., “relatively permanent” lakes, rivers, and streams”—and are “indistinguishable” from those traditionally navigable waters, which, unlike Maryland State law, excludes isolated wetlands. See generally Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001).

[95] Md. Code Ann., Env’t § 5-901(n)(1) (West 2024).

[96] Env’t § 5-901(n)(1), 5-906(i)(2); Md. Code Regs. 26.23.01.01(B)(63); Md. Code Regs. 26.23.06.01 (noting that Nontidal wetlands of special State concern are designated by regulation and mapped as having exceptional ecological or educational value of statewide significance).

[97] Maryland Wetland Program Plan, supra note 79, at 48.

[98] There are two types of project approvals issued under the NWPA: a letter of authorization (“LOA”) or a permit. Md. Code Regs. 26.23.02.01(A). An LOA may be issued for activities impacting less than 5,000 ft² of nontidal wetlands or less than one acre of isolated nontidal wetlands. Md. Code Regs. 26.23.03.01(B)(1)–(2). These activities do not require an alternative site analysis, public notice, or mitigation by the applicant. Md. Code Regs. 26.23.03.01(A). The NWPA requires a permit for activities that do not qualify for an exemption or LOA, and if a permit is required, the applicant must conduct an alternative site analysis, provide public notice, and conduct mitigation. Md. Code Regs. 26.23.03.01(A).

[99] Env’t §§ 5-901(n)(2), 5-905(a); Md. Code Regs. 26.23.01.02.

[100] Md. Code Regs. 26.23.01.02.

[101] See Md. Code Ann., Env’t § 5-906(a) (LexisNexis 2024); see also Md. Code Regs. 26.23.03.01A.

[102] Md. Dep‘t of the Env‘t, In-lieu Fee Program Prospectus 5 (2015), https://mde.Maryland.Gov/programs/water/wetlandsandwaterways/aboutwetlands/documents/prospectus.Pdf.

[103] Id.

[104] Maryland Wetland Program Plan, supra note 79, at 47.

[105] See discussion infra Part III.B.iii.

[106] Clean Water Justice Act, Md. Code Ann., Env’t §§ 1-901–904 (LexisNexis 2024).

[107] See Md. Code Ann., Env’t § 5-911 (LexisNexis 2023).

[108] 33 U.S.C. § 1365(a).

[109] Id.

[110] See Major Bill Restoring Justice Passes the Maryland General Assembly, Waterkeepers Chesapeake (Apr. 8, 2024), https://waterkeeperschesapeake.org/major-bill-restoring-justice-passes-the-maryland-general-assembly/ (emphasis added) [hereinafter Waterkeepers Chesapeake Press Release].

[111] Standing – Environmental and Natural Resources Protection Proceedings (Clean Water Justice Act of 2024): Hearing on S.B. 653 Before the S. Comm. on Educ., Energy, & the Env’t, 446th Gen. Assemb., Reg. Sess. (Md. 2024) (statement of Sen. Malcolm Augustine, Member, S. Comm. on Educ., Energy, & the Env’t).

[112] Id. (emphasis added).

[113] Waterkeepers Chesapeake Press Release, supra note 110.

[114] Id. (emphasis added).

[115] See discussion infra Part IV.A.

[116] See Stephen R. Rubin, An Analysis of Nontidal Wetland Regulation in Maryland, 16 Va. Env’t L. J. 459, 460 (1997) (“Maryland’s wetland protection is better than that of other states.”); Md. Code Regs. 26.23.02.04.

[117] Md. Code Ann., Env’t § 5-906 (West 2024); Md. Code Ann., Env’t § 16-202 (West 2024); see also Chesapeake Bay Found., A Citizen’s Guide to Protecting Wetlands in Maryland 7 (2004), https://www.cbf.org/document-library/cbf-guides-fact-sheets/Citizens-Guide-to-Protecting-Wetlands2e37.pdf.

[118] Md. Code Ann., Env’t §§ 1-901–904 (LexisNexis 2024).

[119] Md. Dep’t Env’t, Groundwater Protection Program Report to the Maryland General Assembly (2021), https://mde.maryland.gov/programs/water/water_supply/Documents/GroundwaterProtectionReport-2021-Dec.pdf(“Groundwater is nearly the sole source of freshwater in Maryland’s Coastal Plain,” which encompasses the entire portion of the State east of Interstate 95. Indeed, out of Maryland’s roughly six million residents, over two million depend on groundwater for their drinking water supply.”).

[120]Groundwater Recharge and Discharge, Md. Dep’t Env’t, https://mde.maryland.gov/programs/water/wetlandsandwaterways/aboutwetlands/pages/discharge.aspx (last visited July 1, 2024).

[121] Id. (emphasis added).

[122] Md. Code Ann., Env’t § 5-101(I)(1).

[123] Currently, there is no citizen right of action for groundwater violations under the Clean Water Justice Act. Env’t §§ 1-901–904

[124] Md. Code Ann., Env’t § 9-323(a) (LexisNexis 2024).

[125] Md. Code Regs. 26.08.02.09A(1)–(2).

[126] In applying for groundwater discharge permits, “a second legal requirement for spray irrigation of wastewater [is that it] be covered by a nutrient management plan.” Chesapeake Legal All., Groundwater Permit and Spray Field Advocacy Opportunities in Maryland 12 (2020), https://www.chesapeakelegal.org/wp-content/uploads/2020/04/Groundwater-Permit-and-Spray-Field-Advocacy-Opportunities-in-MD-1.pdf.

[127] According to the Maryland Geological Survey, “[t]he primary sources of nitrate to groundwater are from agricultural land uses, including land application of commercial fertilizers and manure.” Md. Dep‘t of the Env‘t, Groundwater Protection Program Report to the Maryland General Assembly 35 (2021), https://mde.maryland.gov/programs/water/water_supply/Documents/GroundwaterProtectionReport-2021-Dec.pdf.

[128] According to the U.S. Geological Survey, “70 percent of nitrogen in Eastern Shore streams travels to those streams through groundwater as nitrate.” Scott W. Ator & Judith M. Denver, Understanding Nutrients in the Chesapeake Bay Watershed and Implications for Management and Restoration—the Eastern Shore, U.S. Geological Surv. 5 (2015), https://pubs.usgs.gov/circ/1406/pdf/circ1406.pdf.

[129] Methemoglobinemia “is characterized by a reduced ability of the blood to transport oxygen and can lead to severe oxygen deficiency and even death.” Nitrates, Md. Geological Surv., http://www.mgs.md.gov/groundwater/nitrate.html (last visited July 1, 2024).

[130] Id.

[131] Groundwater has never been covered under the Clean Water Act, even prior to the Supreme Court’s Sackett decision. The Act has only ever applied to surface water. See 40 C.F.R. § 120.2 (2023).

[132] Md. Code Ann., Env’t § 9-342 (LexisNexis 2024) (civil penalties); Md. Code Ann., Env’t § 9-343 (LexisNexis 2024) (criminal penalties).

[133] See Chesapeake Accountability Project, 2022 Maryland CAP Enforcement Scorecard 5 (2022), https://chesapeakeaccountability.org/sites/default/files/attachments/2022-03/2022-cap-enfc-scorecard-3922.pdf (“In the two decades between fiscal years 2002 and 2022, MDE lost one out of every seven staff, with its agency budget of state general funds falling by more than one-third, adjusting for inflation. MDE now represents less than one-fifth of one percent (0.018%) of Maryland’s total state general fund budget, which is half of what it was two decades ago.”).

[134] See id.; see also Elizabeth Shwe, Maryland’s Water Pollution Enforcement is on the Decline, Md. Matters (Mar. 10, 2022, 7:00 AM), https://marylandmatters.org/2022/03/10/report-marylands-water-pollution- enforcement-is-on-the-decline/.

[135] States like Michigan have broad, sweeping environmental citizen suit provisions to enforce all environmental pollution laws, including groundwater permit violations. See, Mich. Comp. Laws Serv. § 324.1701(1) (West 2024) (allowing “any person” to “maintain an action in the circuit court…for the protection of the air, water, and other natural resources and the public trust in these resources from pollution, impairment, or destruction”); see also N.J. Rev. Stat. § 2A:35A-4a (West 2024) (permitting “any person” to sue to enforce laws that are “designed to prevent or minimize pollution, impairment or destruction of the environment”); see also James R. May, The Availability of State Environmental Citizen Suits, 18 SPG Nat. Res. & Env’t 53, 55 (2004).

[136] In Maryland, a constitutional amendment requires approval of three-fifths of all the members elected to each of the two houses of the General Assembly and a simple majority of Maryland voters. Md. Const. art. XIV, § 1.

[137] Massachusetts’s constitution grants its “people . . . the right to clean . . . water . . . .”  Mass. Const. amend. art. XLIX. New York’s constitution declares, “Each person shall have a right to clean . . . water . . .” N.Y. CONST. art. I, § 19. Pennsylvania’s constitution states, “The people have a right to . . . pure water . . . .” PA.  Const. art. I, § 27. Rhode Island’s constitution declares, “it shall be the duty of the general assembly to provide for the conservation of . . . water . . . .” R.I.  Const. art. I, § 17.

[138] See, e.g., PA. Const. art. I, § 27; see also Robinson Twp. v. Commonwealth, 83 A.3d 901 (Pa. 2013) (allowing citizens to bring suit and invalidate the Pennsylvania Oil and Gas Act under, among other things, Article 1, Section 27 of the Pennsylvania Constitution).

[139] However, RHEs have been invoked to protect wetlands in combination with constitutional public trust and native trust provisions. See generally In re Surface Water Use Permit Applications, 154 Haw. 309 (2024).

[140] Maryland tried to provide an RHE in its constitution in 2019. The bill declared that “every person has the right to a clean and healthy environment, including the right to: (1) Clean air; (2) Pure water; (3) A healthful environment;(4) ecosystems . . . .” H.D. 472, 441st Gen. Assemb., Reg. Sess. (Md. 2019). The bill established the State and local governments as trustees charged with preventing the diminution and degradation of natural resources and granted a cause of action to “any person.” Id. Notably, the bill defines “Waters of the State” to encompass all the waters in the Environmental Article’s broad definition, which includes groundwater. Id. In 2020, a constitutional amendment bill was introduced and declared “Every person has the right to a clean and healthy environment, including the right to…[p]ure water” and “[e]cosystems that sustain the State’s natural resources including the waters of the State, air, flora, fauna, climate, and public lands.” H.D. 517, 442nd Gen. Assemb., Reg. Sess. (Md. 2020). The bill would have appointed the State and political subdivisions as “trustees of the State’s natural resources,” thereby prohibiting the state from “caus[ing] unreasonable diminution of, or degradation to, the State’s natural resources by action or inaction.” Id. Notably, the bill carried a private cause of action, allowing “any person” to “enforce the rights . . . against any public party . . . .” Id. Maryland’s General Assembly again introduced a constitutional RHE bill in 2021. Recognizing that “[t]he State’s natural resources are the common property of every person,” the bill granted Marylanders the “fundamental and inalienable right to a healthful environment, including the right to clean air, water and land, a stable climate, and the preservation, protection, and enhancement of ecological, scenic, and historic values of the environment.” H.D. 82, 443rd Gen. Assemb., Reg. Sess. (Md. 2021). The bill would have acknowledged the State as “trustee of the air, land, water, living, and historic resources…for the benefit of all the people…including future generations.” Id. Additionally, the amendment would have prohibited the State from “caus[ing] unreasonable diminution of, or degradation to, the State’s natural resources by action or inaction.” Id. Finally, like the 2020 iteration, the bill established a private right of action. Id. A less comprehensive 2022 bill stated, “Every person has the fundamental…right to a healthful and sustainable environment” and mandated the State to “[s]erve as the trustee of…natural resources, including . . . water . . . for the benefit of every person, including present and future generations.” H.D. 596, 444th Gen Assemb., Reg. Sess. (Md. 2022). Unlike the 2020 iteration, this bill did not include a citizen suit provision. Id.; see also Johanna Adashek, Do it for the Kids: Protecting Future Generations from Climate Change Impacts and Future Pandemics in Maryland Using an Environmental Rights Amendment, 45 Pub. Land & Res. L. Rev. 113, 123 (2022).

[141] H.D. 472, 441st Gen. Assemb., Reg. Sess. (Md. 2019); H.D. 517, 442nd Gen. Assemb., Reg. Sess. (Md. 2020).

[142] See, e.g., Robinson Twp., 83 A.3d 901 (Pa. 2013).

[143] Id.

[144] The Illinois Supreme Court held that although the State constitution provided a right to sue to enforce the RHE, the constitution created no separate cause of action. Rather, the provision “does away with the ‘special injury’ requirement typically employed in environmental nuisance cases. Thus, while a plaintiff need not allege a special injury to bring an environmental claim, there must nevertheless still exist a cognizable cause of action” separate from and in addition to the RHE. City of Elgin v. Cnty. of Cook, 660 N.E.2d 875, 891 (Ill. 1995). As of this writing, no Massachusetts court has yet to determine whether the Commonwealth’s RHE is judicially enforceable, and the U.S. District Court for the District of Massachusetts declined to do so, explaining that ‘‘[I]t is emphatically not the role of the federal courts to develop and expand upon state law…’” Hootstein v. Amherst-Pelham Reg’l Sch. Comm., 361 F.Supp.3d 94, 115 (D. Mass. 2019). See also John C. Dernbach, The Environmental Rights Provisions of U.S. State Constitutions: A Comparative Analysis, in Environmental Law Before the Courts: A US-EU Narrative (Giovanni Antonelli et al. eds., 2023).

[145] H.D. 472, 441st Gen. Assemb., Reg. Sess. (Md. 2019); H.D. 517, 442nd Gen. Assemb., Reg. Sess. (Md. 2020); H.D. 82, 443rd Gen. Assemb., Reg. Sess. (Md. 2021).

[146] The “rights of nature” movement “asserts that nature and natural features have inherent value independent of human needs, and should accordingly be entitled to their own legal rights.” Erin Ryan et al., Environmental Rights for the 21st Century: A Comprehensive Analysis of the Public Trust Doctrine and Rights of Nature Movement, 42 Cardozo L. Rev. 2447, 2500 (2021). This principle “remain[s] vital in many Indigenous cultures that honor and protect the rights of nature as a cultural matter.” Id. at 502. For rights of nature lawsuits, the natural feature itself has standing—and acts as plaintiff—and may sue upon injury. Tiffany Challe, The Rights of Nature—Can an Ecosystem Bear Legal Rights, Columbia Climate Sch.: Climate, Earth, & Soc’y (Apr. 22, 2021), https://news.climate.columbia.edu/2021/04/22/rights-of-nature-lawsuits/.

[147] Rubin, supra note 116; Md. Code Regs. 26.23.02.04.

[148] 2022 Maryland CAP Enforcement Scorecard, supra note 133.

[149] Id. (citing MDE’s “languishing” budget); see also Marcus Dieterle, Balt. Fishbowl, Maryland’s Water Quality Enforcement Diminished Under Hogan Administration (2022), https://baltimorefishbowl.com/stories/report-marylands-water-quality-enforcement-diminished-under-hogan-administration/.

[150] 2022 Maryland CAP Enforcement Scorecard, supra note 133; see also Dieterle, supra note 149.

[151] Acknowledging that the “federal Clean Water Act’s scope was narrowed considerably following a recent U.S. Supreme Court decision, reducing federal protection for various water bodies, including most wetlands,” Governor Inslee’s budget allocated over $2 million to “manage the increased workload associated with processing the state authorizations required for projects impacting waterways no longer eligible for federal permits.” Wash. State Dep’t of Ecology,  Governor Inslee’s 2024 Supplemental Budget – Operating 2–3, 6–7

(2023), https://ecology.wa.gov/getattachment/00549cb5-ce6b-442f-8e40-056c136d9688/2024GovSupplementalOperati

[152]See Md. Dep’t Env’t, Annual Enforcement and Compliance Reports, https://mde.maryland.gov/Pages/enforcementcompreports.aspx (last vistited Dec. 30, 2024) (providing reports from 1997 to 2023, which the statistics on “enforcement activities from inspections to actions on violations, disposition of significant violations” among other things).

[153] See Figure 1.

[154] See Figure 1.

[155] See Figure 1.

[156] See Figure 1.

[157] The Clean Water Act mandates the EPA to “take into account the nature, circumstances, extent and gravity of the violation, or violations, and, with respect to the violator . . . the degree of culpability, economic benefit or savings resulting from the violation . . . . ” 33 U.S.C. § 1319(g)(3). The “EPA’s policies provide for adjustments based on a violator’s good faith efforts to comply . . . .” Env’t Prot. Agency, Clean Water Act Section 404 Settlement Penalty Policy 3 (2001), https://www.epa.gov/sites/default/files/documents/404pen.pdf. Since conducting regulated activities in jurisdictional wetlands before seeking a permit indicates a lack of good faith to comply, the EPA’s policy allows the agency to factor such culpability into the penalty. Id. TheMDE, on the other hand, does not appear to have a penalty policy specifically addressing the dredging and filling of protected wetlands that mandates the consideration of culpability. Maryland’s Nontidal Wetlands Protection Act does permit MDE to assess a penalty of up to $10,000 per violation. Md. Code Ann., Env’t § 5-911(d)(1). However, data indicates that MDE rarely seeks penalties for significant nontidal wetlands violations. According to MDE’s Annual Compliance Report, of the 34 sites inspected with significant nontidal wetlands permit violations, MDE pursued only one enforcement action, resulting in no monetary penalties. Md. Dep’t of the Env’t, Annual Compliance & Enforcement Report Fiscal Year 2023 8, 87 (2023), https://dlslibrary.state.md.us/publications/Exec/MDE/EN1-301%28d%29_2023.pdf.

[158] See, e.g., Howard, M.D., Howard County Zoning Regulations § 100.0(G)(2)(a)(7) (2024).

[159] New York allows its municipalities to regulate both tidal and freshwater wetlands. Municipalities can even regulate wetlands not the state does not regulate. Several municipalities, including the Town of New Castle, Village of Trumansburg, Town of Ulysses, have employed a variety of strategies, including local wetlands permitting regimes, zoning overlay districts, clearing and grading ordinances, zoning setbacks, and open space conservation. See, e.g., Ulysses, N.Y., ch. 212, art. IX, § 212-51-55 (open space conservation); Ulysses, N.Y., ch. 212, art. VI, § 212-34 (zoning setbacks for wetlands). Additionally, some local governments in New York have integrated wetlands provisions in their comprehensive plans.  N.Y. State Dep’t of State, Wetland and Watercourse Protection Measures 5 (2019), https://dos.ny.gov/system/files/documents/2020/06/2_wetland-and-watercourse-protection_measures_all.pdf.

[160] Vermont’s Shoreland Protection Act (“SPA”) protects water quality by regulating activities within 250 feet of the mean water level of lakes and ponds. Vt. Stat. Ann. tit. 10, § 1443 (2018); see also Shoreland Permitting, Vt. Agency Of Nat. Res., https://dec.vermont.gov/watershed/lakes-ponds/permit/shoreland (last visited Aug. 29, 2024) (showing that a handful of municipalities, including Burlington, Colchester, Greensboro, and Elmore, have received delegated authority to administer the program). Other municipalities may become eligible to administer the Act upon: (1) Adopting an ordinance functionally equivalent to the SPA standards; and (2) Obtaining adequate resources for administration and enforcement of the ordinance. Vt. Stat. Ann. tit. 10, § 1448.

[161] The State of Washington’s Growth Management Act contains a program that requires all cities and counties to designate and preserve natural resource lands in “critical areas,” which includes wetlands and areas with a critical recharging effect on aquifers used for potable water.  Wash. Rev. Code § 36.70A.060(2).

[162] Virginia’s Chesapeake Bay Preservation Act regulates development activities throughout the Commonwealth’s Tidewater Region. Chesapeake Bay Prevention Act, VA.  Dep’t of Evn’t Quality, https://www.deq.virginia.gov/our-programs/water/chesapeake-bay/chesapeake-bay-preservation- act (last visited Aug. 29, 2024) (codified as Va. Code Ann., 62.1-44.15:67 (2022)). The program is primarily implemented at the local level and overseen by the Commonwealth. Id.

[163] See, e.g., art. VI, § 212-34 (zoning setbacks for wetlands).

[164] Howard, M.D., Howard County Zoning Regulations § 100.0(G)(2)(a)(7) (2024) (“[I]ncluding bodies of water, water courses, 100-year floodplains, wetlands, wooded areas, and major trees, and proposed changes with respect to any of these.”).

[165] See Md. Code Ann., Nat. Res. §§ 8-1801–1817 (West 2024).

[166] Nat. Res. § 8-1801; H.D. 301, 416th, Gen. Assemb., Reg. Sess. (Md. 2002) (adding the Atlantic Coastal Bays program by repealing and reenacting Nat. Res. § 8-1801 with amendments).

[167] Nat. Res. § 8-1807.

[168] Nat. Res. § 8-1802(a)(4); Md. Code Regs. 27.01.01.01(8) (2024).

[169] See Nat. Res. § 8-1815.1 (West 2024); Frequently Asked Questions, Answers to Questions about the Buffer, Md. Dep’t Of Nat. Res., https://dnr.maryland.gov/criticalarea/Pages/faqs.aspx (last visited Sept. 3, 2024) (“Generally, construction and land disturbance are prohibited in the Buffer.”). Construction and disturbance include clearing trees, cutting brush, and grading; therefore, a local jurisdiction may not authorize a disturbance unless it is approved under a local variance, but if the Buffer is already forested, it should be maintained in natural vegetation.

[170] See Md. Code Ann., Nat. Res. § 8-1803 (West 2024); Id. § 8-1806.

[171] See Md. Code Ann., Nat. Res. § 8-1808 (West 2024).

[172] Id. § 8-1808.1.

[173] Nat. Res. § 8-1808(c)(1)(i) (“[This] subtitle shall apply to, and be applied by, a local jurisdiction as minimum standards for a program sufficient to meet the goals of the Critical Area Program.”).

[174] Nat. Res. § 8-1808.11(a) (originally enacted in 2008).

[175] Id. (Factors considered in a feasibility determination include whether the proposed project site is: “(1) an area of excessive erosion; (2) subject to heavy tides, and (3) too narrow for effective use” of a living shoreline).

[176] See Niki L. Pace & Nathan Morgan, Living Shorelines: Eroding Regulatory Barriers to Coastal Resilience, 31 Nat. Res. & Env’t 44, 45 (2017).

[177] Id. at 44–45.

[178] Timothy B. Wheeler, Living Shorelines Gain Ground Around the Chesapeake Bay but Face Hurdles, Bay J. (Jan. 22, 2024), https://www.bayjournal.com/news/policy/living-shorelines-gain-ground-around-the-chesapeake-bay-but-face-hurdles/article_7e8fa37a-b934-11ee-b784-bfa4404808dc.html (stating that in the years preceding 2016, the MDE granted waivers from the living shoreline requirement at a rate of 80%. However, that rate decreased to 68% in 2020, and in 2022, MDE denied more waiver requests than it granted).

[179] See Md Code Ann. Nat. Res. § 8-1801 (West 2024), amended by H.D. 233, 446th Gen. Assemb., Reg. Sess. (Md. 2024) (adding “There is a critical and substantial State interest in developing policies and strategies to better mitigate, prepare for, and adapt to the consequences of climate change along the State’s shorelines . . . by identifying, restoring, creating, and conserving existing natural and nature-based features” to subsection (11) to section (a), “There is a critical and substantial State interest in ensuring the equitable distribution of the benefits and burdens of development, restoration, mitigation, and conservation along the State’s shorelines and in ensuring equitable representation and participation . . . .”  to subsection (12) to section (a), “The inclusion of incentive-based programs to ensure development is compatible with projected climate impacts and coastal hazards is vital to the State’s goal of addressing climate resiliency” to subsection (13) to section (a), “including climate change” to subsection (3) of section (a), “in a manner in which burdens and benefits are distributed equitably” to subsection (7) of section (a), “enhancing the natural resources in the Critical Area” to subsection (8) of section (a), and “equitable” to subsection (2) of section (b)).