April 21, 2018
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Officials question LePage plan to relax permit process near waterfowl habitat

Courtesy of Bob Duchesne
Courtesy of Bob Duchesne
State wildlife officials expressed cautious concerns Thursday about how ducks and other waterfowl could be affected by a proposal to relax permitting requirements for development near wetlands.
By Kevin Miller, BDN Staff

AUGUSTA, Maine — State wildlife officials expressed cautious concerns Thursday about how ducks and other waterfowl could be affected by a proposal to relax permitting requirements for development near wetlands, but stopped well short of opposing the LePage administration plan.

Some members of the regulatory board reviewing the proposal, however, suggested that the administration’s plan was overly broad and could make it too easy for landowners to build subdivisions and commercial projects near sensitive bird populations.

“As written, I don’t think it passes the straight-face test as far as no significant impacts” on bird habitat, said Wing Goodale, a member of the Maine Board of Environmental Protection who also works as a research biologist.

The Maine Department of Environmental Protection is proposing to streamline the permitting process for landowners who wish to build near “moderate value” habitat used by ducks, herons and other inland waterfowl or wading birds for feeding and nesting.

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. That means landowners must go through a sometimes lengthy and costly process involving reviews by other state agencies, including the Department of Inland Fisheries and Wildlife, as well as scrutiny from abutters and outside groups.

Critics contend the rules are discouraging business growth and needlessly preventing some landowners from fully using their property.

The DEP proposal would allow landowners looking to develop near moderate-value habitat to skip the full review and instead use the state’s permit-by-rule process in which projects receive an expedited review typically by department staff alone. Many permits are issued within 14 days and do not require public notice or consultation with other agencies.

The board is accepting written comments on the proposed changes through Dec. 27. In January, the board will vote on what to recommend to state lawmakers for consideration in next year’s legislative session.

Mike Mullen, who heads the DEP’s Bureau of Land and Water Quality, has described the proposal as offering “balanced, workable regulations that protect wetlands and wildlife without overly limiting landowners.”

But some conservation groups have said the proposal goes too far because it does not distinguish between a request to build a single-family house or small business from a larger commercial development or a residential subdivision. They also contend that the 100-foot buffer in the proposal is too small, especially during the breeding season when some species are sensitive to disturbance.

On Thursday, wildlife officials with DIF&W appeared to be walking a delicate line as they answered board members’ questions about potential effects on birds from development without speaking harshly against a regulatory reform measure strongly supported by the administration. Although he did not address the board, DIF&W Commissioner Chandler Woodcock watched the discussion from the audience gathered for the BEP meeting held in the Department of Public Safety building.

Under the department’s current guidelines, DIF&W works to minimize impacts from houses that are within 100 feet of the buffer zone near wildlife habitat and generally discourages subdivisions or commercial development within 250 feet. The department also generally discourages activity between April 15 and July 31 in buffer zones because that is the breeding and fledging period for birds.

But Steve Walker, DIF&W’s acting environmental review coordinator, acknowledged that “there are other forces at play here” and said the board must balance habitat concerns with private property rights and other policy issues.

“Yes, we have concerns about impacts to significant wildlife habitat,” Walker said after board members repeatedly pressed him on the department’s stance. “But, again … you, as the public policy board, have to weigh where is that balance.”

Critics of the proposed rules point out that internal communications between staff at DIF&W and DEP suggest that biologists are concerned about the changes.

In November, Walker wrote to Mullen that he would like to see a timing restriction between April 15 and July 31 built into the rules. And former DIF&W wildlife group leader Mark Stadler, who recently retired, wrote to Mullen in July that he found the proposals to change the waterfowl and wading bird habitat protections “deeply disturbing.”

Speaking after Thursday’s meeting, Stadler said DIF&W staff are concerned that the department will not be consulted under the permit-by-rule process. In his eyes, those consultations make sense economically and logistically because they help landowners carry out their projects in a way that minimizes the effect on wildlife, thereby avoiding potential problems in the future.

But Nick Bennett, staff scientist at the Natural Resources Council of Maine, said it was clear from the documentation that DIF&W staff have concerns but are being compelled to tread carefully with the board.

“I’m very shocked at how hard the DEP is pushing to gut their own regulations,” Bennett said.

It was clear during Thursday’s discussion of the proposal that board members are still undecided on the proposal. Several said they wanted to read all of the testimony before discussing the issue further.

Goodale and several other members expressed concerns about allowing commercial development proposals as well as subdivisions to use the permit-by-rule process. At the same time, other board members pointed out that a 4,500-square-foot, single-family house would arguably have a bigger impact on waterfowl than a small business. Additionally, there was some discussion about lengthening the 100-foot buffer in the proposed rules to 150 feet.

The board is expected to continue deliberating on the issue at its Jan. 5 meeting and likely will hold a second meeting in January to finish deciding the language before submitting it to the Legislature for consideration.

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