Authority over Activities Adjacent to Protected Natural Resources
- date: July, 2002 contact: 207-287-3901
The 120th Legislature approved amendments to the Natural Resources Protection Act (NRPA) and major substantive rule amendments to Chapter 305, Permit by Rule Standards, and Chapter 310, Wetlands Protection. The intent of these amendments is to create a more consistent set of rules for activities adjacent to protected natural resources in both the organized and unorganized towns of the state. These amendments were developed by analyzing existing standards found in municipal shoreland zoning ordinances, the Land Use Regulation Commission's rules, and the NRPA rules.
How was the law changed?
NRPA was amended to extend its application to all regulated activities adjacent to protected natural resources, not just those activities that disturb soil, such as cutting and removing vegetation. Exemptions were added to the law to allow some cutting and tree removal and to allow maintenance, but not expansion, of existing lawns, gardens, and agricultural fields if these are located within 75 feet of most protected natural resources. Exemptions such as those for forest management activities, maintenance and repair, etc. still exist in the NRPA.
What rule amendments were approved?
Chapter 305, Permit by Rule Standards, was amended to allow adjacent activities to qualify for the permit by rule (PBR) process provided that the applicant can demonstrate there is no other practicable alternative to locating the project within a 75 foot setback from the affected natural resource. A requirement that the applicant minimize the area of impact was also added. To be consistent with municipal shoreland zoning (SLZ) and the Land Use Regulation Commission's (LURC) standards in the unorganized townships, the setback from natural resources has been reduced from 100 feet to 75 feet.
Chapter 310 has been renamed "Wetlands and Waterbodies Protection" and rivers, streams, and brooks have been added as natural resources subject to the rule. Chapter 310 addresses the licensing of projects that are not eligible for PBR. It contains requirements to avoid impacts, to minimize impacts that are determined to be unavoidable, and to compensate for those impacts, when required.
What will be the effect of these changes?
Prior to the law and rule changes, there was no state regulation of cutting and vegetation removal adjacent to smaller streams in the organized towns, particularly those first order or headwater streams above the point where 2 perennial streams converge (this is the point at which SLZ takes jurisdiction). Also, the setback on these small streams was effectively only 25 feet. These amendments will increase the protection afforded to smaller streams and certain freshwater wetlands by increasing the setback to 75 feet and adding clearing and development standards similar to those that already exist in SLZ ordinances and LURC rules. Forest management activities are not subject to the cutting and clearing standards for development.
Why should activities be set back from natural resources?
Numerous studies have shown that maintaining trees, shrubs, and ground cover adjacent to streams and other natural resources can provide a significant benefit to water quality and fisheries, as well as provide habitat for a variety of wildlife. The Department has chosen to define "adjacent to", for regulatory purposes under the NRPA, to be 75 feet, which is the same as existing SLZ and LURC setbacks on streams. Our research indicates that while a 75-foot setback provides only minimal benefit when the objectives include wildlife habitat protection, flood mitigation and sediment removal, but it does provide some buffering capabilities for nitrogen removal, water temperature moderation, bank stabilization and food sources for aquatic fauna.
Is anything allowed within 75 feet of protected natural resources?
Activities adjacent to many freshwater wetlands are not regulated under the NRPA. However, the 75 foot setback will be in effect around all great ponds, coastal wetlands, rivers, streams, brooks and freshwater wetlands containing peatland or more than ½ acre of open water. People can continue to maintain, but not enlarge, existing development and developed areas such as lawns, gardens and agricultural fields without any permits from the Department. Some cutting and removal of trees and vegetation is also exempt, as is described in more detail below. Cutting associated with forest management is not regulated under this authority .
Most other activities previously allowed under the PBR program are not affected by this new authority over adjacent activities. Stream and utility crossings, intake and outfall pipes, maintenance of structures, etc. are still allowed by simply filing a PBR Notification form, providing any required submissions, and following the rule standards.
What if I can't stay more than 75 feet away from the protected natural resource?
Sometimes, due to a lot's configuration, slopes, other physical factors, and perhaps municipal ordinances requiring setbacks from abutters, it may not be possible to stay 75 feet back from a protected natural resource. In most cases, provided you can demonstrate there is no practicable alternative to being within 75 feet of the natural resource, you can qualify for the Permit by Rule process. As part of this process, you will need to minimize those portions of your project that are located within the 75 foot setback.
What if I perform a new activity in an existing developed area within 75 feet of the protected natural resource?
Generally, the Department will encourage new activities to take place in existing developed areas rather than allow any further development in otherwise undisturbed areas within the 75 foot setback from the protected natural resource. For example, building a garage on an existing parking area within 75 of the natural resource will be acceptable under the Permit by Rule program. However, the Department will discourage converting other developed areas, such as lawns, to structures because maintaining as much vegetation as possible within the 75 setback is important, even if the area is mowed lawn.
How much cutting and vegetation removal is allowed within the setback?
The new exemption in NRPA for cutting and vegetation removal is almost identical to the SLZ standards. In fact, where towns have shoreland zoning in effect, any cutting and vegetation removal is regulated solely by the town and is exempt from the NRPA. Where municipal shoreland zoning is not in effect (small streams and some freshwater wetlands), up to 40% of trees in the setback may be cut and removed and other trees may be pruned up 1/3 of their height. (A tree is defined as one that is 4 inches in diameter at 4½ feet off the ground.) However, a well distributed stand of vegetation must remain. To determine if a "well distributed stand of vegetation" remains, trees of certain diameter are worth various "points" and a minimum of 8 points must remain in each 25 foot by 25 foot square area that can be marked out on the lot. Also, openings in the tree canopy that result from tree cutting cannot be larger than 250 square feet in size.
Grasses and other non-woody vegetation under 3 feet in height can not be removed. However, a meandering pathway no wider than 6 feet can be cleared to the natural resource for access to the water.
When will this new authority become effective?
September 1, 2002. However, recognizing that this new authority over adjacent activities is a substantial change and that many people may not be aware of this increase in setback from natural resources, the Department will work voluntarily and in an informal way with those who unintentionally find themselves in violation of the law and rules. The Department will be actively informing municipal officials, developers, real estate agents, contractors, consultants and others of this new authority and how to plan for including the 75 foot setback in the projects they plan or review.