The following standards apply to all projects as described in
Section
2.
A.
Avoidance. The activity will
be considered to result in an unreasonable impact if the activity will cause a
loss in wetland area, functions, or values, and there is a practicable
alternative to the activity that would be less damaging to the environment. The
applicant shall provide an analysis of alternatives (see Section
9(A)) in order to
demonstrate that a practicable alternative does not exist.
For an activity proposed in, on or over wetlands of special
significance, a practicable alternative less damaging to the environment is
considered to exist and the impact is unreasonable, unless the activity is
described in paragraph (1), (2) or (3) below. An applicant proposing an
activity described in paragraph (1), (2) or (3) below shall provide an analysis
of alternatives (see Section
9(A)) .
(1) Certain types of projects. The activity
is necessary for one or more of the purposes specified in subparagraphs (a) -
(h).
(a) Health and safety;
(b) Crossings by road, rail or utility
lines;
(c) Water dependent
uses;
(d) Expansion of a facility
or construction of a related facility that cannot practicably be located
elsewhere because of the relation to the existing facility, if the existing
facility was constructed prior to September 1, 1996;
(e) Mineral excavation and appurtenant
facilities;
(f) Walkways;
(g) Restoration or enhancement of
the functions and values of the wetlands of special significance; or
(h) Shoreline stabilization.
(2) Wetlands with aquatic
vegetation, emergent marsh vegetation or open water (Section
4(A)(5) wetlands of
special significance). The activity is for a purpose other than specified in
Section 5(A)(1)(a) - (h), is located in, on or over a wetlands of special
significance having those characteristics described in Section
4(A)(5); and
(a) The activity is located at least 250 feet
from aquatic vegetation, emergent marsh vegetation, or open water as described
in Section
4(A)(5);
and
(b) The activity does not
unreasonably adversely affect the functions and values of the aquatic
vegetation, emergent marsh vegetation, or open water, as described in Section
4(A)(5), or the
functions and values of the freshwater wetlands that are enhanced or served by
the aquatic vegetation, emergent marsh vegetation or open
water.
(3) Certain
activity on a pier, wharf, dock or other structure constructed before the
effective date of this chapter. An activity is located on a pier, wharf, dock
or other structure over a coastal wetland and;
(a) The commissioner has reviewed and
approved an alternative set of standards pursuant to
38 M.R.S.
§438-A(2) that would
potentially allow a non water-dependent use; and
(b) The pier, wharf, dock or other structure
was constructed prior to June 30, 1990 and is still in existence on the date of
the application.
NOTE: When making decisions pursuant to
38 M.R.S.
§438-A(2) regarding
alternative shoreland zoning standards, the department considers requests to
allow non-water-dependent uses narrowly, consistent with coastal policies
reflected in the Mandatory Shoreland Zoning Act (MSZA) and adopted guidelines.
The department considers potential effects on existing, traditional working
waterfront uses.
B.
Minimal
Alteration. The amount of wetland to be altered must be kept to the
minimum amount necessary.
C.
Compensation. Compensation is the off-setting of a lost wetland
function with a function of equal or greater value. The goal of compensation is
to achieve no net loss of wetland functions and values. Every case where
compensation may be applied is unique due to differences in wetland type and
geographic location. For this reason, the method, location and amount of
compensation work necessary is variable.
In some instances, a specific impact may require
compensation on-site or within very close proximity to the affected wetland.
For example, altering a wetland that is providing stormwater retention which
reduces the risk of flooding downstream will likely require compensation work
to ensure no net increase in flooding potential. In other cases, it may not be
necessary to compensate on-site in order to off-set project impacts. Where
wetland priorities have been established at a local, regional or state level,
these priorities should be considered in devising a compensation plan in the
area to allow the applicant to look beyond on-site and in-kind compensation
possibilities.
(1) When required.
Compensation is required when the department determines that a wetland
alteration will cause a wetland function or functions to be lost or degraded as
identified by a functional assessment (see paragraph 2 below) or by the
department's evaluation of the project. If a functional assessment is not
required under this rule, no compensation will be required unless the
department identifies wetland functions that will be lost or
degraded.
(2) Functional
assessment. Resource functions that will be lost or degraded are identified by
the department based upon a functional assessment done by the applicant and by
the department's evaluation of the project. The functional assessment must be
conducted in accordance with Section
9(B)(3) for all
activities except for those listed in Section 5(C)(6) below.
(3) Location of compensation projects. The
compensation must take place in a location:
(a) On or close to a project site as
necessary to off-set direct impacts to an aquatic ecosystem;
(b) Otherwise, compensation may occur in an
off-site location where it will satisfy wetland priority needs as established
at the local, regional or state level to achieve an equal or higher net benefit
for wetland systems, if approved by the department.
(4) Types of compensation. Compensation may
occur in the form of:
(a) Restoration of
previously degraded wetlands;
(b)
Enhancement of existing wetlands;
(c) 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
(d) Creation of wetland from upland.
More than one method of compensation may be allowed on a
single project. Preference is generally given to restoration projects that will
off-set lost functions within, or in close proximity to, the affected wetland.
However, other types of compensation may be allowed by the department if the
result is an equal or higher overall net benefit for wetland systems.
(5) Compensation
amounts. The amount of compensation required to replace lost functions depends
on a number of factors including: the size of the alteration activity; the
functions of the wetland to be altered; the type of compensation to be used;
and the characteristics of the compensation site. Compensation shall be
performed to meet the following ratios at a minimum, unless the department
finds that a different ratio is appropriate to directly off-set wetland
functions to achieve an equal or higher net benefit for wetlands:
(a) 1:1 for restoration, enhancement or
creation to compensate for impacts in wetlands not of special
significance;
(b) 2:1 for
restoration, enhancement or creation to compensate for impacts in wetlands of
special significance;
(c) 8:1 for
preservation, including adjacent upland areas, to compensate for impacts in all
wetlands.
(6) Exceptions.
Neither a functional assessment nor compensation is required for the following
single, complete projects:
(a) Freshwater
wetlands
(i) Alterations of less than 500
square feet in a freshwater wetland of special significance provided that the
department determines that there will be only a minimal effect on freshwater
wetland functions and values, significant wildlife habitat or imperiled or
critically imperiled community due to the activity;
(ii) Alterations of less than 15,000 square
feet in a freshwater wetland not of special significance, provided that the
department determines that there will be only a minimal effect on freshwater
wetland functions and values due to the activity;
(iii) Alterations in a freshwater wetland for
a road, rail or utility line crossing of a river, stream or brook for a
distance of up to 100 feet from the normal high water line on both sides,
measured perpendicular to the thread of the river, stream or brook, provided:
a. Any affected freshwater wetland does not
contain significant wildlife habitat or a critically imperiled or imperiled
community; and
b. The total project
affects 500 square feet or less of the channel.
(b) Coastal Wetlands. A coastal wetland
alteration that does not cover, remove or destroy marsh vegetation, does not
fill more than 500 square feet of intertidal or subtidal area, and has no
adverse effect on marine resources or on wildlife habitat as determined by the
Department of Marine Resources or the Department of Inland Fisheries &
Wildlife as applicable.
(c) Great
Ponds. A great pond alteration that does not place any fill below the normal
high water line, except as necessary for shoreline stabilization projects, and
has no adverse effect on aquatic habitat as determined by the Department of
Inland Fisheries & Wildlife or the Department of Environmental
Protection.
(d) Rivers, streams or
brooks. A river, stream or brook alteration that does not affect more than 150
feet of shoreline for a private project or more than 300 feet of shoreline for
a public project.
(e)
Walkways/Access structures. A wetland alteration consisting of a walkway or
access structure for public educational purposes or to comply with the
Americans with Disabilities Act.
(7) Waiver. The department may waive the
requirement for a functional assessment, compensation, or both. The department
may waive the requirement for a functional assessment if it already possesses
the information necessary to determine the functions of the area proposed to be
altered. The department may waive the requirement for compensation if it
determines that any impact to wetland functions and values from the activity
will be insignificant.
D.
No Unreasonable Impact
(1) Even
if a project has no practicable alternative and the applicant has minimized the
proposed alteration as much as possible, the application will be denied if the
activity will have an unreasonable impact on the wetland. "Unreasonable impact"
means that one or more of the standards of the Natural Resources Protection
Act,
38 M.R.S.
§480-D, will not be met. In making this
determination, the department considers:
(a)
The area of wetland that will be affected by the alteration and the degree to
which the wetland is altered, including wetland beyond the physical boundaries
of the project;
(b) The functions
and values provided by the wetland;
(c) Any proposed compensation and the level
of uncertainty regarding it; and
(d) Cumulative effects of frequent minor
alterations on the wetland.
(2) Activities may not occur in, on or over
any wetland of special significance containing threatened or endangered species
unless the applicant demonstrates that:
(a)
The wetland alteration will not disturb the threatened or endangered species;
and
(b) The overall project will
not affect the continued use or habitation of the site by the species.
When considering whether a single activity is reasonable in
relation to the direct and cumulative impacts on the resource, the department
considers factors such as the degree of harm or benefit to the resource; the
frequency of similar impacts; the duration of the activity and ability of the
resource to recover; the proximity of the activity to protected or highly
developed areas; traditional uses; the ability of the activity to perform as
intended; public health or safety concerns addressed by the activity; and the
type and degree of benefit from the activity (public, commercial or
personal).
