Current through 2024-38, September 18, 2024
A.
Avoidance. An activity that
would degrade the significant wildlife habitat, disturb the subject wildlife,
or affect the continued use of the significant wildlife habitat by the subject
wildlife, either during or as a result of the activity, will be considered to
have an unreasonable impact if there is a practicable alternative to the
project that would be less damaging to the environment.
B.
Minimal alteration.
Alteration of the habitat and disturbance of subject wildlife must be kept to
the minimum amount necessary by, among other methods, minimizing the size of
the alteration, the duration of the activity, and its proximity to the
significant wildlife habitat and subject wildlife. Temporary structures must be
used instead of permanent structures wherever possible when they would be more
protective of the significant wildlife habitat or subject wildlife.
C.
No unreasonable impact. Even
if the activity 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 protected natural resources or
the subject wildlife. "Unreasonable impact" means that one or more of the
standards of the NRPA at 38 M.R.S.A. §480-D will not be met. In making
this determination, the department considers the area of the significant
wildlife habitat affected by the activity, including areas beyond the physical
boundaries of the project and the cumulative effects of frequent minor
alterations of significant wildlife habitats.
In order to meet the "harm to habitats; fisheries" standard
at 38 M.R.S.A. §480-D(3), the following requirements must be met.
(1) Unreasonable degradation, disturbance, or
effect. The activity may not unreasonably degrade the significant wildlife
habitat, unreasonably disturb subject wildlife, or unreasonably affect the
continued use of the site by the subject wildlife.
A specific impact may require mitigation on-site or within
close proximity to the affected significant wildlife habitat in order to lessen
the severity of the impact. For example, altering a portion of a shorebird
feeding area that is providing critical habitat for migratory shorebirds will
likely require mitigation on-site to ensure that potential effects of the
proposed activity are reduced. Mitigation methods may include the
implementation of a buffer enhancement plan, deed restriction or other methods
as determined by the department.
(2) Timing. The department may require that
construction activities occur during a time when impacts on protected habitats,
wildlife, fisheries and aquatic life will be minimized, such as outside of any
critical nesting or breeding periods or similar critical periods, depending on
the specific habitat and species. For example, an activity that could
potentially cause sedimentation, such as excavation, may not be carried out
during times of the year when fish are spawning. This requirement must be met
unless the work can only practically be completed at that time, and it is
determined by the department that the impacts to the protected natural resource
will be short term, and will not result in permanent harm to fish, wildlife, or
marine resources.
D.
Compensation. Compensation is the off-setting of a lost habitat
function with a function of equal or greater value. The goal of compensation is
to achieve no net loss of habitat functions and values. Every case where
compensation may be required is unique due to differences in habitat type and
geographic location. For this reason, the method, location, and amount of
compensation work necessary is variable.
(1)
When required. Compensation is required when the department determines that an
impact to significant wildlife habitat will cause habitat functions or values
to be lost or degraded as identified by the department. This determination may
be based on the department's or the Department of Inland Fisheries &
Wildlife's evaluation of the project, which may include an evaluation of
appropriate information from other sources.
(2) Types of compensation. Compensation may
include one or more of the following methods.
(a) A compensation project may be required by
the department. Habitat compensation may include the restoration, enhancement
or preservation of in-kind significant wildlife habitat or uplands or wetlands
adjacent to such habitat. The site of the compensation project must provide
significant wildlife habitat functions that might otherwise be degraded by
unregulated activity, be located within the affected habitat or within similar
habitat located within close proximity to the affected habitat, and the site
must be preserved. If habitat priorities have been established at a local,
regional or state level, the applicant shall consider those priorities in
devising a compensation plan. Directional buffers may also be used in some
instances to off-set impacts.
(b)
In lieu of a compensation project, wholly or in part, payment of a compensation
fee into the "Natural Resources Mitigation Fund" may be allowed by the
department. The department is authorized to develop an in lieu fee compensation
fee program for use in cases of impacts to certain types of significant
wildlife habitat. See 38 M.R.S.A. §480-Z(3).
(3) Compensation amounts. The amount of
compensation required to replace lost functions depends on a number of factors
including: the type of habitat to be altered; the size of the alteration
activity; the functions of the habitat to be altered; and the type of
compensation to be used. Compensation as described in Section 3(D)(2)(a) must
meet the following ratios of square footage or acreage at a minimum (area
restored, enhanced, created or preserved/area impacted), unless the department
finds that a different ratio is appropriate to directly off-set habitat
functions to achieve an equal or higher net benefit for habitat:
(a) 2:1 for restoration, enhancement, or
creation;
(b) 8:1 for
preservation, including adjacent upland or wetland habitat.
(4) Waiver. The department may
waive the requirement for an assessment of habitat functions and values,
compensation, or both. The department may waive the requirement for an
assessment of the habitat if the department already possesses the information
necessary to determine the functions and values of the area proposed to be
altered. The department may waive the requirement for compensation if it
determines that the impact to habitat functions and values from the activity
will be insignificant.
E.
Seasonal factors. When
determining the significance of a wildlife habitat or impact from a proposed
activity, seasonal factors and events that temporarily reduce the numbers and
visibility of plants or animals, or obscure the topography and characteristics
of a habitat such as a period of high water, snow and ice cover, erosion event,
or drought are taken into account. Determinations may be deferred for an amount
of time necessary to allow assessment of the resource without such seasonal
factors.
