Wed, 10/04/2006

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Controversial shoreland rules head to hearing
By Victoria Wallack

REGIONAL (Oct 4, 2006): While the state attempts to do political damage control in Down East communities most affected by new regulations protecting the habitat of shorebirds, it continues to work on aspects of those rules that will affect more developed parts of the coast.

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A public hearing is being held by the Board of Environmental Protection on Thursday in Augusta to consider permits regulating already developed land abutting low-tide flats used by shorebirds for feeding and resting.

Since the birds' environment presumably has been disturbed on those developed parcels, the proposed rules allow new construction, but would require special approval if it is to be done from July 15-Sept 15 – the time when migratory birds use Maine’s shore to fatten up for their trans-Atlantic flights.

The hearing is scheduled for Thursday, Oct. 5, at 1 p.m., at the Holiday Inn/Ground Round on Community Drive in Augusta. Written comments are being accepted up to 5 p.m. on Oct. 16.

On undeveloped parcels abutting shorebird habitat, which is mainly tidal mudflats, the new regulations call for building 250 feet back from the shore. If the lot is too small to allow that setback, a landowner has to get a permit from the Department of Environmental Protection.

The permits can take up to two to three months to obtain, and the DEP can require a landowner to minimize impact on the habitat by putting structures as far back as possible and keeping cultivated lawns and paved areas to a minimum.

A total of 1,122 miles, or 10.7 percent, of both developed and undeveloped Maine shoreline, including inlets and islands, is now protected under the shorebird regulations passed without debate by the Legislature earlier this year. Some of those areas already were protected under shoreland zoning, but the minimum setback was just 75 feet.

The impact of the new regulations started to hit home last week in Washington County, when maps showing the affected areas were distributed to local planning boards. Washington County has 395 miles of affected shoreline, or 17.5 percent of its coast – the greatest percentage and number of miles in the state. Some landowners and real estate agents there claim the state has singled it out because of its remote location and greater percentage of undeveloped parcels, but the commissioner of the Department of Environmental Protection, David Littell, says that’s not the case.

“For better or worse, some of the best staging areas and feeding areas for the entire coast of North America are right in Washington County,” said Littell.

Its large swing between high and low tides and mudflat coastline, versus the rocky shoreline on the mid-coast region, make it a prime area for shorebirds. Waldo County, for example, has only 4 miles, or 1.4 percent of its coastline designated as shorebird habitat.

The Passamaquoddy Indian Reservation in Pleasant Point followed by Addison, both in Washington County, are first and second in the state in terms of communities with the greatest amount of acreage under shorebird habitat protection. Scarborough, because of the vast Scarborough Marsh, is No. 3. Portland is No. 9.

In areas of the state where development already has occurred next to the habitat, a process known as “permit by rule” is what the Board of Environmental Protection is considering on Thursday. Under the proposal, a landowner wishing to add a garage or enlarge his home, for example, would have to notify the DEP. If the work is to occur between July 15 and Sept 15, the landowner also would have to get approval of the timing of the activity from the Department of Inland Fisheries and Wildlife.

While the DEP is not backing off on the science used to determine habitat – first identified through geological maps and then verified by bird sightings done by Inland Fisheries and Wildlife – it does admit to a problem with communication.

“The controversy got out in front of us,” said Andy Fisk, director of the Bureau of Land and Water Quality for the DEP, who said people feel they haven’t been given “clear and concise information” about the new rule.

Both Fisk and Littell said they expect legislators to propose changes to the new rules when they return in January.

People with questions can contact their local code enforcement office, their regional DEP office or the DEP headquarters in Augusta at 1-800-452-1942.

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