Posted by: Archipelago Law in Environmental, Land Use on July 26, 2022
Whether you are a construction company, developer, engineer, site designer or homeowner, you must comply with stringent state permitting laws when working near a natural resource. The Maine legislature has acted to diminish the lasting adverse impacts on natural resources in light of accelerated development. By enacting the Natural Resources Protection Act (“NRPA”), the legislature has developed a comprehensive permitting scheme designed to protect the State’s rivers and streams, great ponds, fragile mountain areas, freshwater wetlands, significant wildlife habitat, coastal wetlands and coastal sand dune systems. Representatives recognize that these resources have great scenic beauty and unique characteristics; unsurpassed recreational, cultural, historical, and environmental value of present and future benefit to the citizens of the State; and that uses are causing the rapid degradation and, in some cases, the destruction of these critical resources, producing significant adverse economic and environmental impacts and threatening the health, safety and general welfare of the citizens of the State.
In order to prevent any unreasonable impact to, degradation or destruction, and to encourage their protection or enhancement of natural resources, the Maine Department of Environmental Protection (“MDEP”) reviews NRPA permit applications to ensure stringent standards are met for all activity on or over any protected natural resource, or located adjacent to a coastal wetland, great pond, river, stream or brook or significant wildlife habitat contained within a freshwater wetland, or certain freshwater wetlands themselves. Many activities associated with a classified resource triggers the necessity for NRPA permit approval in accordance with specific standards.
1. Permit By Rule
MDEP will review a NRPA Permit-by-Rule (“PBR”) application for activities which will not significantly affect the environment and, generally, have less of an impact on the environment than those activities requiring a full individual permit. Activities within 75’ of a protected natural resource, replacement of existing permanent structures in, on or over a protected resource, movement of rocks or vegetation, shoreline stabilization, natural resource restoration projects, and bridges or culvert crossings of a river, stream or brook are some activities that may qualify under PBR. Typically, a PBR application becomes effective within 14 days of submittal to MDEP, unless the MDEP approves or denies the PBR prior to that date, and it is effective for two years.
2. Individual Permits
An individual permit must be applied for and approved by MDEP when the activity has potential to more significantly affect the environment above the level allowed with only a PBR. In many instances, multiple standards apply to a single project and all applicable standards must be met. MDEP requires that any NRPA regulated development meet general preventative standards, including, but not limited to, avoidance to the greatest extent practicable and ensuring no unreasonable impact will occur.
- Freshwater Wetland Alteration Permit (Tier Permitting)
In recognition of the important role wetlands play in our natural environment, the NRPA wetland permitting attempts to preserve wetland functions and values by ensuring that certain standards are met by applicants proposing regulated activities in, on, over or adjacent to a wetland. This rule adopts a tiered permitting scheme for alterations to wetlands. In determining the level of permitting, MDEP considers such factors as the size of the alteration, functions of the impacted area, existing development, or character of the area in and around the alteration site, elevation differences and hydrological connection to surface water or other protected natural resources, among other things. Generally, a Tier 1 permit involves disturbance of up to 14,999 sq. ft. of wetlands, a Tier 2 permit involves alteration up to an acre, and a project involving more than an acre of wetland disturbance will require a Tier 3 permit. Certain wetlands are more restrictively regulated as a “wetland of special significance.” Alterations of such wetlands generally requires a Tier 3 permit from MDEP. With each tier of permitting comes a heightened level of scrutiny and possible compensation or mitigation.
In some instances, a specific impact may require compensation on-site or within close proximity to the affected wetland in the form of: 1) Restoration of previously degraded wetlands; 2) Enhancement of existing wetlands; (3) Preservation of existing wetlands or adjacent uplands where the site to be preserved provides significant wetland functions and might otherwise be degraded by unregulated activity; or (4) Creation of wetland from upland.
- Significant Wildlife Habitat
NRPA outlines standards for an activity that takes place in, on, or over a significant wildlife habitat, or adjacent to a significant wildlife habitat contained within a freshwater wetland. In addition to the general standards of avoidance, minimal alteration, no unreasonable impact, and compensation to counteract net loss of resource functions, standards are set forth to protect specifically identified critical habitats such as: significant vernal pool habitat; high and moderate value waterfowl and wading bird habitat; tidal habitats; and shorebird nesting, feeding, and staging areas. Specific impacted habitats require differing methods of protection. NRPA identifies these habitats and provides the necessary previsions to reduce any adverse effects on Maine’s native species.
- Sand Dune Systems
Many sandy beaches and dunes along Maine’s coastline are eroding due, in part, to changing coastal conditions, sea level rise, and increased development. As a response to development, a Sand Dune Permit is required for many activities in, on, or over a coastal sand dune. The Maine Geological Survey (“MGS”) periodically produces updated coastal sand dune mapping data, further identifying specific zones as “Frontal Dunes” and “Back Dunes” as areas of special importance. While stricter standards are set forth for areas within a frontal dune, all projects must conform to certain standards such as: a maximum of 40% developed area coverage; restricting building size to 2,500 sq. ft. subject to various exceptions; no new seawall or similar structure may be constructed; and no project may unreasonably harm Designated Essential Habitat and significant wildlife habitat within the dune system.
Due to comprehensive state, federal and municipal land use permitting regulations, almost all land development projects within Maine require a heightened level of permitting. Projects large or small often require the expertise of trained land use professionals to help navigate the complexities mentation required for every level of review. The advice of a qualified land use attorney should be sought to develop a strategic method to accomplish your development goals.
Michael J. Skolnick, Esq.
Archipelago Law, LLP