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Wetland and Shoreland Zoning Tools

1. Introduction to Wetland/Shoreland Zoning Tools | 2. Definitions (pdf) | 3. Model Wetlands Ordinance | 4. Shoreland Zoning Amendments | 5. Resource Protection Ordinance | 6. In Lieu Fee Mitigation

MarshModel Municipal Freshwater Wetlands Ordinance

Introduction

This model for a Municipal Freshwater Wetlands Ordinance, developed by the State Planning Office (SPO) is designed to provide Maine communities with a tool to reduce the impacts of wetland losses from land use activities. It addresses the cumulative impacts resulting from small wetland alterations, which, although regulated by the Maine Department of Environmental Protection (DEP), are not presently subject to compensation requirements under state law or regulation. In other words, although small impacts to wetlands result in direct losses and incremental degradation of the functions performed by those wetlands, such as flood protection, runoff filtration, and habitat values, there are no requirements to replace those lost functions. The loss of ecological services performed by wetlands at the local level translates to direct economic costs for the community when artificial remedies are necessary to replace these services.

These uncompensated small wetland losses can add up. DEP regulations do not require compensation for wetland alterations involving less than 20,000 square feet of disturbance unless the alterations occur in wetlands defined by the regulations (DEP Rule 310) as wetlands of special significance (refer to Recommended Shoreland Zoning Amendments). Over half of all wetland alterations regulated by the state involve less than 20,000 acres, and cumulatively these wetland alterations amount to over 25% of the total wetland losses from regulated wetland activities (Wetland Regulation Under the Natural Resources Protection Act (NRPA): Program Overview 2002, Maine DEP and Maine State Planning Office).

What This Example Covers

This model ordinance addresses wetland alterations that are regulated by the state but not required to provide compensation. These alterations include activities that disturb at least 4,300 square feet (current NRPA permitting threshold for lower value wetlands) and up to 20,000 square feet of wetlands. However, most wetland alterations involving a "wetland of special significance" as defined by DEP regulations would not be covered by this example. DEP generally requires compensation for alteration of wetlands of special significance, unless the alteration is deemed "minor" (less than 500 square feet) and the DEP finds that the alteration will have only a minimal effect on the wetland functions and values.

This model does not address wetland losses that occur from activities that are "exempted" from DEP review by the NRPA (as provided in Section 480-Q of that law), or that are explicitly exempted from compensation requirements (certain projects involving crossings of a river, stream, or brook, and projects involving walkways and access structures for educational purposes or disabled access). This model was crafted to mirror the DEP review process so as not to increase regulatory burden other than to recapture lost wetland functions at the local level. A community may wish to consider expanding the scope of this model ordinance to address some exempt activities such as impacts to wetlands below the 4,300 square foot DEP threshold.

How This Example Works

This model minimizes the need to invent new standards and processes for reviewing wetland alteration projects by "piggy-backing" onto the standards and application procedures of the DEP Natural Resources Protection Act (NRPA). This ordinance adopts by reference the standards and guidelines contained in the NRPA and the DEP rules developed through the authority provided to it in the NRPA (Chapter 310: Wetlands and Waterbodies Protection Rules; and Chapter 305: Permit by Rule). For simplicity and to avoid duplication of application effort, this ordinance is designed to accept the NRPA application as the application for a Wetlands Permit at the local level. Lastly, and most fundamentally, it accepts a permit granted by the DEP as meeting its wetland objectives for all intents and purposes except for compensating for (and therefore minimizing) cumulative wetland losses from small scale wetland alterations. By accepting DEP rulings on permits, the ordinance does not require the municipality to have technical review capacity beyond what would be offered by a Codes Enforcement Officer, Planner or Planning Board.

The purpose of this model is to add a final level of review at the local level in order to achieve additional wetland compensation for small scale projects, which although not a concern from a statewide perspective, can be significant from a local perspective, particularly when cumulative impacts are considered, or when an alteration affects a wetland of "local significance." The model provides a choice to an applicant as to what form of compensation will be provided: the applicant can choose to pay a Wetland Compensation Fee (which is paid into a Wetland Compensation Fund established by the municipality); or to implement a wetland compensation project involving preservation, restoration, or enhancement of an existing wetland.

The model also provides choice for the municipality to tailor the Ordinance in terms of how Wetland Permit Applications are reviewed and approved: 1) the Planning Board could both review and approve Wetland Permit Applications; or, 2) the review function could be assigned to a Planning Staff or Code Enforcement Officer, who would conduct the technical review and provide a recommendation to the Planning Board for a permit action. In this second option, the Planning Board remains the permitting authority. It is likely that most permit applications will be for activities already subject to local development review. It is unlikely that adoption of this wetland review process will unreasonably add to the local paperwork burden. The municipality should carefully consider the best way to process applications based on local staff capacity and ease of coordination with local development review procedures.

Example Tool

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