April 25, 2018
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Will plan to reduce red tape harm Maine wetlands?

Kevin Miller | BDN
Kevin Miller | BDN
Some say new proposals will make it too easy for developers to build near wetlands.
By Kevin Miller, BDN Staff

AUGUSTA, Maine — As part of its efforts to reduce red tape, the Maine Department of Environmental Protection is proposing to ease the permitting requirements for landowners who want to build near “moderate value” wetlands.

But representatives of several environmental organizations as well as some lawmakers involved in the discussion of DEP regulations have suggested that the proposed changes, while appropriate for single-family houses, may make it too easy for developers of residential subdivisions and commercial projects.

Last week, the Board of Environmental Protection voted to hold a public hearing on Dec. 1 on the DEP’s proposal to change the permitting requirements for new houses, roads or other development near inland habitat used by ducks, herons and other waterfowl or wading birds.

The issue affects property owners throughout Maine whose land includes inland waterfowl and wading bird habitat that are included in designated “resource protection districts.”

Under current law, any new development near moderate or high value habitat — as identified by state maps — first must receive an individual permit from the DEP, a potentially lengthy process involving reviews by other state agencies and possible comment from outside groups.

The department proposal pending with the BEP would ease that process for landowners of moderate value habitat. Instead of having to apply for an individual permit, projects that meet specified standards could proceed without a full review under the state’s “permit by rule” system, likely saving the applicants’ time and money.

Mike Mullen, director of the DEP’s Bureau of Land and Water Quality, said it became clear during discussion with the Legislature earlier this year that lawmakers felt the permitting process should be eased for moderate value habitat used by ducks and wading birds. Development near high value habitat still would need to go through the full permitting process.

“The idea was to come up with something that was a little bit more predictable for people,” Mullen said.

Sen. Tom Saviello, a Wilton Republican who is co-chairman of the Legislature’s Environmental and Natural Resources Committee, said he has not read the department’s proposal and likely would wait until it reached the Legislature for review next year.

But Saviello said committee members on both sides of the aisle agreed that the rules needed to be fixed to allow, say, a landowner to create a lot for a family member without having to jump through too much red tape. Saviello said the committee also heard tales of people struggling because of inaccurate resource protection maps that showed ducks and wading birds in areas where they could not live.

But representatives of two environmental organizations heavily involved in policy matters said the DEP proposal goes much further than they believe the committee intended.

Susan Gallo, a wildlife biologist at Maine Audubon, said allowing single-family residences to use the permit-by-rule system was less of a concern because those small projects likely would have minimal impacts on bird habitat. But the DEP proposal, Gallo said, also would allow commercial developments and residential subdivisions to use the permit-by-rule system, thereby lessening the opportunity for biologists and interested groups to comment on projects with more potential to affect wildlife.

“I feel like the department missed the spirit of why the Legislature asked them to draft this,” Gallo said.

Likewise, Nick Bennett with the Natural Resources Council of Maine said his organization can live with permit by rule for smaller developments, such as individual houses. But the proposed rule change could limit the state’s own biologists from reviewing and helping guide large-scale projects to avoid destroying important bird habitat.

“We think it is potentially a big problem,” Bennett said.

Rep. Bob Duchesne, a Hudson Democrat who serves on the Environment and Natural Resources Committee, raised similar concerns after reviewing the DEP’s proposal.

“It seems to be broader than the Legislature intended — or at least broader than this legislator intended,” Duchesne wrote in an email. “I think our intent was to make [permit by rule] available for single family homeowners. The actual language seems to apply to a wider range of development projects.”

Mullen responded that the current rules do not address subdivisions. As for the resistance to allowing commercial developments to use the permit-by-rule system, Mullen said “that is a legitimate comment” and predicted it will be discussed thoroughly both in front of the Board of Environmental Protection and lawmakers when they review the board’s actions.

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