Testimony by NRCM Staff Scientist Nick Bennett
Dear Chair Lessard and Members of the Board:
My name is Nick Bennett, I reside in Hallowell, and I am the staff scientist for the Natural Resources Council of Maine (NRCM). NRCM is Maine’s largest environmental advocacy group with 12,000 members and supporters. I am also testifying as a passionate waterfowl hunter and a member of Ducks Unlimited. I own 6 shotguns (worth at least $3,000), an $8,000 duck boat, a $1,000 Labrador retriever, and at least $1,000 worth of decoys. I want to protect these investments. According to the US Fish and Wildlife Service, hunting, fishing and wildlife watching are a $1.3 billion industry in Maine, and as you can see I’m doing my part to contribute to this.
This proposed Permit by Rule (PBR) is about development in moderate value inland waterfowl and wading bird habitat (IWWH). Maine’s Department of Inland Fisheries and Wildlife (IFW) biologists determined the location of these areas, which include a wetland and a 250-foot zone around the wetland. The state protects a 250-foot zone around these wetlands under the Natural Resources Protection Act (NRPA) because some of the key species we want to protect â teal, wood ducks, black ducks, golden eyes or “whistlers”, and blue herons, for example â need not just the wetland itself but the trees or ground around the wetland to nest in. They also are unlikely to breed or rear young successfully near traffic or other disturbance. There are numerous studies that show birds use even more land around wetlands, but a 250-foot zone was consistent with other state jurisdictions, such as the shoreland zone.
Keep in mind that this 250-foot zone is not a no-build zone. Development is allowed in these areas, but the state has increased jurisdiction compared to lower value wetlands or upland areas. Moderate value IWWHs make up about 70% of the wetlands that the state protects for inland waterfowl and wading birds. The state does not have additional jurisdiction to protect waterfowl and wading birds in about 50% of the wetlands in Maine, which are considered lower value. I think perhaps IFW used a poor choice of words when they labeled these wetlands only “moderate” value. They quality of the habitat in many of these areas is quite high, but they are generally smaller wetlands than the “high” value IWWH.
In the last legislative session, NRCM helped negotiate a compromise in which DEP would drop the requirement that municipalities put high and moderate IWWH under the resource protection (RP) provisions of their shoreland zoning ordinances. The law previously required this. RP is very restrictive and would allow even small residential development under limited circumstances. Thus, it seemed acceptable to us that the state protect IWWH under NRPA, which would be less restrictive than RP but still provide significant protection. Towns that wish to put or keep IWWH under RP may still do so (about half of all Maine towns never put IWWH into their RP provisions to begin with).
During the hearings on IWWH last session, the Legislature also asked DEP to develop a permit by rule (PBR) for these areas. NRCM did not oppose this, because we thought it was in response to testimony from some small landowners who had difficulty building homes near IWWH under the previous system. We assumed, mistakenly, that DEP would propose a PBR for small developments, but instead they proposed this, which would allow commercial development and large-scale subdivisions.
By ending the requirement that municipalities put IWWH into RP, the Legislature has greatly relaxed the rules for developing in IWWH 250-foot zones. Commercial development and large residential subdivisions can now proceed in these areas with a NRPA permit in municipalities that choose not to place IWWH under RP. This is a new major regulatory relaxation, and commercial and large scale residential developers know how to deal with NRPA. For landowners who want to build a single family home, NRCM supports their being able to do so under permit by rule, but the large scale developments should require a permit.
The real difference between getting a NRPA permit and developing through permit by rule is the review by state biologists and the requirement to avoid, minimize, and mitigate (see 38 MRSA §480(C)(3)). DEP rarely denies a permit to develop. It has issued 39 permits for 39 proposed developments in IWWHs between January 2006 and May 2011 (see Attachment 1). What DEP does do, however, in consultation with IFW biologists, is look at the size and location of a proposed development and suggest changes to minimize damage. This might mean asking a developer to move a parking lot back from a wetland, for example, or moving a development to a different location on a parcel if the proposed building area were near a heron rookery. Or, if there is no place to move the project to, DEP might require some form of mitigation from the developer. None of this happens under a PBR.
We are asking the Board to keep this “avoid, minimize, and mitigate” process alive for larger developments. DEP’s PBR proposal would stop this process for all but the largest projects that trigger the site law. A gas station or convenience store could result in 24-hour-a-day traffic in waterfowl and wading bird breeding habitat — very significant disturbance — and a gas station presents significant spill risk to a waterfowl wetland. A 14-house subdivision would also result in a high level of disturbance. These are fundamentally different from a single family home, which again, we see no problem with allowing under permit by rule.
Here are the changes we propose BEP make to DEP’s proposal:
1. The PBR should be limited to one single family home per lot in existence as of the time Maine’s IWWH maps were completed in 2008. If a landowner wants to subdivide into a large number of lots, they could still do so but would need a permit.
2. The Board should put an acreage cap on the development allowed under PBR. Limit the size of the development to 20% of the land area in the IWWH or 2 acres, whichever is smaller. Remember again that this is just for PBR and that larger development can proceed with a permit.
I would like to ask the Board to keep a couple of other things in mind when considering this issue. DEP stated in its November 3, 2011 memo to the Board: “it was determined” that this proposal would cause no harm to the environment (see Attachment 2). I wonder who made this determination. Under Maine’s Freedom of Access law, I requested that DEP provide me with all documents related to this proposal. In my review of these documents, I found no evidence that DEP consulted any of its own biologists about this proposal. I also note that in Mike Mullen’s briefing memo to the Commissioner, IFW was listed as a possible opponent to this PBR (see Attachment 3). Moreover, Mark Stadler, at the time head of IFWs wildlife division, stated in an e-mail to Mike Mullen about this proposal that: “I find this deeply discouraging” (see Attachment 4). We think DEP should go forward with a proposal that the State’s wildlife experts think is good, not a proposal they find deeply discouraging.
The Legislature, when it passed NRPA, stated that:
The Legislature finds and declares that the State’s rivers and streams, great ponds, fragile mountain areas, freshwater wetlands, significant wildlife habitat, coastal wetlands and coastal sand dune systems are resources of state significance. 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 (38 MRSA § 480-A).
We do not think this PBR proposal is consistent with the purpose of NRPA, but with some changes, the Board can ask DEP to come up with one that is.