Testimony by Nick Bennett, NRCM Staff Scientist
Dear Senator Boyle, Representative Welsh and members of the Environment and Natural Resources Committee. My name is Nick Bennett. I am the Staff Scientist at the Natural Resources Council of Maine, and I appreciate this opportunity to testify in opposition to LD 470.
The Natural Resources Council of Maine strongly opposes LD 470 as drafted. As we understand this bill, it has been introduced, ostensibly, to help a single businessman cut more trees than allowed under current shoreland zoning rules. The advocate for this change claims that he needs to remove all vegetation all the way to the shore along the entire proposed site, not just at the boat launching and docking facilities, to allow him to build a marina in Portland on a previously used industrial site.
NRCM supports the idea of reusing previously developed industrial sites for commercial marine purposes. However, this bill goes way beyond encouraging reuse of old industrial sites and has sweeping implications for the whole state. LD 470 includes huge changes not just to shoreland zoning, which we understand has been the issue for the Portland marina, but also to the Natural Resources Protection Act (NRPA). NRCM believes all sections of this bill regarding NRPA are unnecessary to encourage reuse of industrial sites for marine activities and should be struck from the bill.
The following sections of the bill are problematic and would result in significant exemptions and loopholes in shoreland zoning and NRPA:
Sec. 1. 38 MRSA §439-A, sub-§6
6. A. This section eliminates the requirement for a well-vegetated buffer between all buildings in Maine and the shore. This is one of the most important parts of shoreland zoning. A buffer filters contaminants from runoff and provides critical wildlife habitat. The requirement for a well-distributed stand of vegetation between buildings and the shore needs to be preserved to protect the high quality of Maine’s waters.
6.C. By changing the basis of selective cutting to a “total volume” measure, the functionality of the buffer area could be substantially diminished since in some circumstances that may result in leaving only a few large, widely separated trees.
Sec. 2. 38 MRSA §439-A, sub-§6-A
6-A. B. This section says that any land zoned for general development under shoreland zoning in Maine is working waterfront. That is not true. Most development in the shoreland zone is residences, stores, office buildings, etc., which should not be allowed to qualify as working waterfront and the exemptions in this bill. This section is totally unnecessary to allowing redevelopment of the site in Portland as a marina and should be struck.
Sec. 3. 38 MRSA §480-B, sub-§11
11. This section gives a very broad definition of working waterfront activity under NRPA. The Committee should strike this section of the bill. If the committee decides to keep this section of the bill, which NRCM strongly opposes, “Commercial” should be inserted in front of “boat building and repair”, “hauling”, and “launching”. Also, historically, Maine has never considered boat storage a water dependent use under shoreland zoning and it should not be included here as a working waterfront activity.
Sec. 4. 38 MRSA §480-B, sub-§12
12. The term “a portion thereof” is a big problem. This means that a huge golf course could qualify as exempt from NRPA if it leases out a little bit of land for a fisherman to use for his or her boat. Not just the dock space but the whole golf course would be exempt, according to this language. NRCM believes the Committee should strike this section of the bill. The Committee can encourage redevelopment of industrial sites for marine uses without introducing a new definition of working waterfront land into Maine statute.
Sec. 6. 38 MRSA §480-BB, sub-§2, ¶C
2. This section would exempt any project located within a significant wildlife habitat that is defined as “working waterfront activity” by this bill from having to meet the cutting standards for significant wildlife habitat. This section is not necessary to encourage reuse of old industrial sites. In fact, it would do just the opposite because significant wildlife habitat is often in pristine or very lightly developed areas. The Committee should strike this section of the bill.
Sec. 7. 38 MRSA §480-CC, sub-§3
3. This section exempts any project defined as “working waterfront activity” by this bill in shorebird feeding and roosting areas from meeting the cutting standards for shorebird feeding and roosting areas. Again, this section is not necessary to encourage reuse of old industrial sites. It also would do just the opposite and encourages development in shorebird roosting and feeding habitats, which again are usually pristine or lightly developed. The Committee should strike this section of the bill.
NRCM is not certain, but we believe that the developer in Portland might be able to build his marina even without changing shoreland zoning requirements. We believe the Committee might wish to determine whether he could in fact build most of his facility 75 feet back from the water and maintain a well-distributed stand of vegetation except for commercial docks and launches.
Buffers for activities such as a marina that have large amounts of impervious surface make good environmental sense because they filter contaminants out of stormwater runoff.
However, if the Committee concludes that there is no way for Mr. Sprague to build his facility other than to amend the law, NRCM proposes the following narrower statutory change:
Sec. 1. 38 MRSA §439-A, sub-§6, as amended by PL 2007, c. 292, §22, is
further amended to read:
6. Clearing of vegetation. Within the shoreland area, municipal ordinances shall must provide for effective vegetative screening between buildings and shorelines. Notwithstanding any provision in a local ordinance to the contrary, vegetative screening requirements shall must be no less restrictive than the following:
A. Within a strip extending 75 feet inland from the normal high-water line, there shall may be no cleared opening or openings, except for approved construction, and a well-distributed stand of vegetation shall be retained. However, this section shall not apply to land that is adjacent to tidal waters if that land is zoned as a commercial fisheries and maritime activity zone or was historically intensively developed with industrial or commercial uses and is part of a state or federal brownfields program or a voluntary response action program under section 343-E for cleanup of contamination for the purpose of redevelopment of the property.
Thank you for the opportunity to testify on this important issue and I would be glad to answer any questions that you may have.