Op–Ed Downeast Coastal Press
November 7, 2006

Homeowners, not just land, impacted by controls

Lubec Landowner: More DEP Rules Also Restrict Already Developed Land

Erich Veyhl

One of the tactics of the Maine Department of Environmental Protection in presenting its draconian new land-use controls and prohibitions has been the standard “divide and conquer” strategy, in which it has tried to make owners of already existing homes feel “safe” from the new restrictions. As a means of suppressing the controversy over its action, the DEP has gone out of its way to ambiguously reassure (but not guarantee) that it won't bother existing homes. But there is nothing in their premises or powers that excludes anyone.

In my September 19 commentary in the Downeast Coastal Press explaining many aspects of the DEP controversy when it was only beginning, I wrote that the implications for owners of existing homes, as well as undeveloped land, are clear: The DEP wants “the entire residential region controlled and managed as a wildlife preserve.” A new wave of DEP rules confirms that sooner than I had expected.

The DEP's Board of Environmental Protection (BEP) held an unannounced hearing in Augusta on October 5 on the new DEP rules restricting an owner's use of his property deemed to be “moderate or high value habitat for waterfowl and wading bird habitat” (not just saltwater shorelines). The hearing was not on the BEP's agenda at its public web site and was revealed only the day before in a news article by syndicated Statehouse reporter Victoria Wallack.

The BEP has now provisionally adopted “Permit by Rule” regulations for already developed property – specifying conditions under which a formal DEP permit is not required provided that new rules are followed – for both the new upland bird “habitat” and seasonal “vernal pools.” The amendments are posted at http://www.maine.gov/dep/bep/2006/2006Sept-07/ch305.pdf. This is a direct link to the pdf file; there is no link at the BEP's Web site, nor is there any other account of the hearing, but the new amendments can be found at the DEP Web page on “Natural Resources Protect Act Rules–Amendments to Chapter 305, Permit by Rule, and 310, Wetlands and Waterbodies Protection Rules (routine technical rulemaking)” at http://www.maine.gov/dep/blwq/rules/NRPA/2006/index.htm.

The new rules apply to (human) “activity” on already developed property, which the DEP had previously said would not be affected by its 250–foot zone of control. Taken literally, the new rules would apply to any “activity” – from using your driveway to cutting the grass to planting a vegetable garden – let alone any construction. The DEP imposes civil and criminal penalties between $100 and $10,000 per day of violation.

The ridiculous, stringent, sweeping requirements coupled with the ambiguous powers of the DEP over ordinary property owners, make everyone in the zones of control perpetually in violation of the law and threatened with financially ruinous penalties. No one can possibly satisfy the rules in any normal life, and interpretation of the rules in practice depends only on the arbitrary decisions of DEP and Inland Fisheries and Wildlife agents in each case, entrenching bureaucrats in a position of rule by fear.

The DEP will likely not, in the near future, literally try to prevent everyone from mowing an existing lawn or try to tear down a house, just as it politically avoids preventing all use of undeveloped land out of fear of a takings suit – until and unless the federal greenline subsidies the environmental special interests want for acquisition under condemnation or regulatory coercion are added later. But the regulations now codify such sweeping, arbitrary authority for DEP intrusion that any owner affected is a potential criminal at the bureaucratic and political discretion of the DEP. And anyone with experience with the radical viros knows that the DEP will exercise its authority to the maximum extent it politically can get away with over time.

The latest “habitat” “permit by rule” restrictions in place of formal DEP permits pertain to “activities” within an “existing developed area,” defined (p.14 of the amendments) to mean an already altered area within a parcel. This definition does not include activity on “undisturbed” land, for which formal DEP permits are required, even if in an existing residential area and even if it is surrounded by existing homes.

Among the requirements to avoid a formal DEP permit for “activities” are submissions to the DEP of before-and-after photographs, advance submissions of detailed scale drawings, and a detailed list of requirements under the heading “to prevent erosion of soil or fill material from disturbed areas into the resource.”

There are other limitations (p. 12), including other unspecified requirements under the ambiguous and sweeping Natural Resources Protection Act, and a requirement for approval by IF&W for a specified time of the “activity” if it is between July 15 and September 15 – the peak summer season when most people work outside on their property.

A list of additional requirements (p. 14) includes 13 specific “activities” ranging from “movement of rocks or vegetation” to “crossings (utility lines, pipes, cables)” to “replacement of structures.”

The DEP says its “permit by rule” regulations make it easier for owners of existing homes, but the restrictions did not previously apply at all to most homeowners before the new IF&W “habitat” maps for the newly expanded 250-foot zone of control.

Activities not included under the “permit by rule” regulations are still subject to formal DEP permit applications.

None of the previous DEP assertions that the new zone of control will be “treated” as “resource protection zones” have been retracted or modified, and there are still no written standards under which the DEP must operate when deciding whether or not it will allow any activity within its 250-foot zone of control or how far back it can prohibit land use.

Nor is this a static situation. The viro lobby and its activists inside government agencies and the Legislature will continue to ratchet up the controls and restrictions to the full extent the viros revealed that they want two decades ago when they first implemented the state Natural Resources Protection Act and attempted to seize private property on an enormous scale through the imposition of federal greenlining, new national parks and wilderness refuges across rural Maine.

The viros will continue to add more “habitat” designations on their IF&W maps (now deemed in advance to ensnare more private property in the future), there will be more restrictive rules, more legislation – stealth and otherwise – and more attempts at federal empowerment through additional viro subsidy entitlements and authority. The current DEP seizure of a 250–foot zone of control is only the relative beginning of their assault on private property owners.

Copyright © 2006, All rights reserved

More on the “habitat” land control agenda for Maine: www.moosecove.com/propertyrights/index.shtml#habitat