Fact Sheet
Planning Projects to Meet Permit-by-Rule Standards

June 1996     Phone: (207)-287-3901

Background

State law identifies certain natural resources as having "state significance" due to their recreational, historical and environmental value to present and future generations. The Natural Resources Protection Act (NRPA) is designed to prevent the degradation and destruction of and to encourage the protection or enhancement of:

  • coastal wetlands and sand dunes
  • great ponds
  • fragile mountain areas
  • significant wildlife habitat
  • freshwater wetlands
  • rivers, streams and brooks

The NRPA requires permits for certain activities in, on or over a protected natural area. It also requires permits for activities on land adjacent to any freshwater wetland, great pond, river, stream or brook that could cause material to be washed into these resources. Examples of these activities include:

  • dredging, bulldozing, removing or displacing soil, sand, vegetation or other materials;
  • draining or otherwise dewatering;
  • filling;
  • constructing, repairing or altering any permanent structure (i.e., one constructed or placed in a fixed location for a period exceeding seven months of the year)

Maine's Department of Environmental Protection (DEP) recognizes that many of the activities subject to the NRPA should not significantly affect the environment if carried out in accordance with the standards contained in the regulations. Accordingly, the DEP has established a permit-by-rule procedure to save applicants the time and expense of filing a full permit application.

A separate DEP Issue Profile, entitled Permit-by-Rule (NRPA) answers questions about obtaining a permit-by-rule. This DEP Fact Sheet answers questions commonly associated with planning a project to meet the DEP's permit-by-rule standards. This publication is not a substitute for the law or regulations. Anyone intending to seek a permit by rule should obtain and carefully review the NRPA Permit By Rule Standards, Chapter 305 available from DEP by contacting one of the offices listed below.

What types of activities governed by the NRPA may be undertaken under the DEP's permit-by-rule procedure?

The DEP has identified 17 specific activities that may be undertaken under the permit-by-rule procedure. If a project is limited to one or more of these activities and includes no other activities subject to NRPA regulation, then the applicant may use the permit-by-rule procedure.

The chart below identifies each of these 17 activities and the condition under which the permit-by-rule standards apply:

Activity

Planning the Project to Comply with the DEP's Permit-by-Rule Standards

1. soil disturbance

Regulated only if the possibility exists that soil or fill materials may wash into a regulated water body (i.e., not regulated if existing barriers such as ice berms and retaining wall or a negative slope will prevent runoff): permit-by-rule applicable only if the work involves soil disturbance and/or fill placement adjacent to (i.e., within 100 feet, measured horizontally, from the normal high water line) but not in a coastal wetland, freshwater wetland, great pond, river stream or brook;

[Note: soil disturbance in areas adjacent to freshwater wetlands is exempt from this standard except for those wetlands listed under 480-C.1.B.]

2. water intake and monitoring devices

Pipes must not significantly affect water levels or flows in the water body: applies also to drilled wells in or adjacent to freshwater wetlands or adjacent to coastal wetlands, great ponds, rivers, streams or brooks [Note: Water line placement to a single family house adjacent to a great pond is exempt from NRPA regulation provided excavated trenches are backfilled, riprapped and seeded to prevent erosion.]

3. replacement of structures

A replaced structure may not exceed the dimensions of the previously existing structure, nor may it extend any further into the water body or wetland, except applicants may replace retaining walls with properly installed riprap (see riprap installation, below)

4. movement of rocks or vegetation

The standards allow for only minimal movement (no more than ten feet) of rocks or removal of vegetation from below the normal high water line of a great pond, river, stream or brook to provide access for swimming or navigation

6. outfall pipes (including ditches and drain tiles)

PBR applies to the installation and maintenance of permanent outfall pipes, ditch outlets and drain tiles for discharges of storm water, ground water and other discharges approved by the DEP (Note: Except for uncontaminated groundwater and storm water from residential and small commercial/industrial facilities, applicants must receive a wastewater discharge license from the DEP)

7. riprap

PBR applies to the placement of riprap along the shoreline of coastal wetlands (only to protect a structure within 100 feet of the eroding bank and never in any portion of a coastal sand dune system or in areas containing soft-bottom/mudflat sediments or salt marsh marsh vegetation), great ponds, rivers, streams and brooks only where erosion already exists and cannot be controlled by planting vegetation. Riprap must not extend higher on the bank than the level at which vegetation can be established to control erosion (1-3 feet above normal high water). Applicants must plant trees and shrubs above the riprap to replace any material removed. Vegetation planted must be similar in type and placement to that removed. Riprap slope must not exceed one horizontal to one vertical, nor be shallower than three horizontal to one vertical. Applicants must:

 

• anchor riprap at the base of the existing bank by placing the bottom row of rock in a trench excavated at least to a depth equal to the height of the largest rock;

• place a layer of filter fabric or crushed rock or washed gravel under the riprap to prevent the washing of soil particles into the water;

• not install any fill material below the normal high water line and must cutback eroding banks to required slopes to allow for riprap installation;

• not put riprap in front of a retaining wall in a manner that it extends further into the water; and

• combine riprap with tree and shrub planting to provide bank stabilization, shading of the water and cover for wildlife along any river, stream or brook.

8. utility line crossings

PBR applies to the installation, maintenance and replacement of utility lines over, submerged under or adjacent to: coastal wetlands, freshwater wetlands, great ponds, rivers, streams or brooks, excluding "outstanding river segments" identified in Title 38, Section 480-P. (Note: The installation of utility cables to a single family house adjacent to a great pond are exempt from NRPA regulation provided excavated trenches are backfilled, riprapped and seeded to prevent erosion. Overhead service drops less than 1,000 feet long for telephone or electrical service in freshwater wetlands.)

9. bridges, culverts and fords

PBR applies to the construction of a permanent road crossing of a river, stream or brook using either a bridge or culvert except for:

• "outstanding river segments"identified in Title 38, Section 480-P;

• any river subject to state mandated Shoreland Zoning; and

• coastal wetlands, freshwater wetlands, floodplain wetlands greater than 10 acres and great ponds.

(Note: maintenance and repair of public and private crossings are exempt from the NRPA provided that erosion control measures prevent sedimentation, the activity does not block fish passage; and there is no additional intrusion into theriver, stream or brook)

10. State transportation facilities

PBR is applicable only to projects conducted by the Maine Department of Transportation or the Maine Turnpike Authority

11. restoration of natural areas

PBR applies to the restoration of altered portions of coastal wetlands, freshwater wetlands, great ponds, rivers, streams, brooks (or areas adjacent to these protected natural resources) to their natural conditions through the removal of fill, structures or deposited debris. PBR also applies to the restoration of adjacent areas through recontouring or grading to pre-existing elevations, replanting to pre-existing or similar vegetation and correcting for inundation from previous flooding. Does not apply to:

• restoration or replacement of structures or to draining of freshwater wetlands to convert an area to upland;

• conversions of existing natural wetlands to a different type of wetland through flooding, inundation or other means;

• dredging silt, sand or soil materials naturally deposited into a coastal wetland, freshwater wetland, great pond, river, stream or brook;

• mining of gravel or other minerals from rivers, streams or brooks;

• replacement of eroded soil material in areas above, below and adjacent to the normal high water mark of coastal wetlands, freshwater wetlands, great ponds, rivers, streams or brooks; and

• removal of dam structures.

12. fisheries and wildlife habitat creation and water quality improvement projects

PBR applies to alterations in and adjacent to coastal wetlands, freshwater wetlands, great ponds, rivers, streams and brooks, provided the alterations are exclusively to create or enhance habitat for fisheries or wildlife or projects to improve water quality. Activities must be conducted by public utilities and municipalities under the supervision of public natural resource agencies. Activities allowed include, but are not limited to:

• fishway installation;

• the construction of artificial reefs, nesting platforms and boxes;

• maintenance, installation or modification of dam structures; and

• the construction and maintenance of nutrient retention structures

13. piers, wharves and pilings

PBR applies to the construction or expansion of pile-supported piers and wharves and the installation of pilings in coastal wetlands. PBR also applies to the construction of structures for water dependent uses (e.g., bait sheds) on pile-supported piers and wharves.

14. public boat ramps

PBR applies to the construction of new or the replacement of existing public boat ramps (no more than two new lanes or a total of two upon completion) and carry-in launch areas, including associated parking and accessways (walk-ways or stairs, portage trails, etc.) in or adjacent to a protected natural area. Such activities include projects by public natural resource agencies, municipalities and owners of federally-licensed hydropower projects. Larger projects or projects where any portion of the ramp or related facilities is located in, on or over emergent marsh vegetation or intertidal mudflat are not eligible for permit-by-rule.

15. general permit for selected activities in coastal sand dune systems

PBR applies to the following specific activities, provided the activity is undertaken in conformance with the DEP's Coastal Sand Dune Rules (Chapter 355):

• replacement of existing seawalls;

• dune restoration or construction;

• beach nourishment;

• walkways and driveways, open fences and decks in back dune areas classified as "A," "B" or "C" flood hazard areas;

• movement of sand and cobble from the front of buried seawalls using machinery; and

• new development or additions to existing development in back dune, non-flood ("C" zone) areas of coastal sand dune systems that are not expected to to be damaged due to shoreline change within the next 100 years based on historic and projected trends.

[Note: The DEP will review such permit-by-rule applications on a case-by-case basis. If the DEP determines that the potential exists for damage from shoreline change, the DEP will require a complete NRPA permit application. This PBR section does not apply to the construction of or additions to existing single family dwellings in "A" or "B" flood hazard zones or to any structures in "V" hazard zones.]

16. transfers and permit extensions

To transfer an NRPA permit from the original permit holder to a new owner, an applicant must submit:

• an affidavit attesting to the fact that the new owner has received, read, understands the terms and conditions and will fully comply with the original terms and conditions of the permit; and

• copies of the permit to be transferred along with documents establishing proof of ownership of the property on which the project is located or sufficient title, right or interest to complete the project in accordance with the requirements of the permit and the NRPA.

To extend a permit, an applicant must submit a copy of the permit along with a written reason/explanation for the extension request.

17. general permit for maintenance dredging previously approved by DEP

PBR applies to the renewal of DEP permits for dredging in coastal wetlands, freshwater wetlands, great ponds, rivers, streams and brooks provided that the dredged material:

• will be disposed of in conformance with Maine Solid Waste Law on land and not in any protected resource area;

• is located in an area that was dredged within the last 10 years; and

• is not located within 250 feet of an area identified as significant wildlife habitat by the Maine Department of Inland Fisheries and Wildlife (DIF&W).

[Note: Applicants can determine whether or not the project is located in or near a significant wildlife habitat area by contacting the local regional DIF&W office]

Are there other general guidelines applicants must follow to comply with the NRPA Permit-by-Rule standards?

Yes. That is why it is important that every applicant obtain and carefully review Chapter 305, the DEP's Permit-by Rule standards.

What are some of the specific guidelines contained in these standards?

The following represents examples of the guidelines contained in these standards. It is not intended as a complete listing, but is presented rather to provide applicants with an appreciation for the tenor and intent of the actual guidelines.

Depending upon the activity undertaken, applicants for a DEP Permit-by-Rule must:

• maintain a 25 foot setback between the normal high water line or upland edge of the protected resource and the activity .(This setback unnecessary for planting vegetation to control erosion, placing or replacing foundations of existing legal structures, or for removing underground storage tanks or closing a landfill in accordance with applicable state laws);

• maintain existing vegetation (especially within the setback area) if possible: if not possible, vegetation must be replaced when activity completed;

• install and maintain appropriate erosion control measures (e.g., staked hay bales, a silt fence) throughout duration of activity;

• limit width of any trenches for water lines or utility cables to the minimum necessary for installation, and refill with the materials excavated and restore the area to the original grading and elevation;

• not operate wheeled or tracked vehicles in the water except to cross streams on rock, gravel or ledge bottom. ( Equipment operating on shore may reach into the water with a bucket or similar extension.);

• operate a wheeled or tracked vehicle in a vegetated coastal wetlandso that the vehicle travels or works on mats or platforms to protect wetland vegetation;

• not perform work below the high water line of a great pond, river, stream or brook at low water, unless the activity is emergency flood control;

• not place uncured concrete directly into water;

• not use wood treated with creosote or pentachlorophenol;

• assure that work performed in rivers, streams or brooks will allow fish passage, maintain normal stream flows at all times of the year and neither obstruct boat passage nor impound water;

• not remove any rocks from below the normal high water line of any coastal wetland, freshwater wetland, great pond, river, stream or brook;

• not clear an area wider than ten feet. (If the area has been cleared in the past, subsequent clearing is limited to the original area. Rocks from the cleared area must remain, randomly distributed, in the area in such a way that no jetty is create);

• not remove rocks holding the shoreline if removal would result in shoreline destabilization or soil erosion;

• use pumps for temporary diversions only when necessary, and provided there is no erosion or sediment discharge;

• not use rocks from the shoreline (because these prevent erosion) or from below the normal high water line (because they provide habitat for aquatic life);

• submit evidence of approval from a Professional Engineer or by the Natural Resources Conservation District for design of work proposed on any river, stream or brook bank; and

• assure that any crossing does not obstruct any recreational use of the water body.

For more information about the NRPA and its permit-by-rule procedure, ask for a copy of Chapter 305, Permit By Rule Standards and Volume II: The Permit-by-Rule Program of the DEP's four volume series Protecting Maine's Natural Resources, by contacting DEP staff at one of the following locations:

Headquarters & Central Maine Regional Office
17 State House Station
Ray Building, AMHI Complex
Augusta, ME 04333
(207) 287-3901
1-800-452-1942

Eastern Maine Regional Office
106 Hogan Road
Bangor, ME 04401
(207) 941-4570Northern Maine Regional Office
528 Central Drive

Presque Isle, ME 04769
(207) 764-0477

Southern Maine Regional Office
312 Canco Road
Portland, ME 04103
(207) 822-6300