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The Natural Resources Committee will review the vernal pool regulations on Tuesday, Feb. 28. The committee meeting starts at 1 p.m., in Room 214 of the Cross Office Building in Augusta, next door to the Statehouse.
The Legislature is being asked to approve environmental regulations affecting vernal pools that would protect the spawning ground of salamanders, frogs and fairy shrimp, but restrict the use of thousands of acres of private property.
The rules would restrict development in the four-and-one-half acres around significant vernal pools – a designation that is determined by counting the number of egg masses in the water in spring. An estimated 90 percent of the pools in the state are less than 650 square feet.
While there is no clear estimate of how many vernal pools exist in Maine, the town of Falmouth has identified 130 pools, and the largest concentration is in Southern Maine. A study has shown between 8 and 30 vernal pools per square mile in York County and between 1 and 14 in Piscataquis County, with about half likely to be significant.
Vernal pools are small depressions in the landscape that fill up with water – either rain or snowmelt – in the spring and are a preferred breeding ground for amphibians. The problem is they are dry most of the year, which makes them hard to spot.
The Maine Department of Environmental Protection (DEP) has proposed rules that would protect vernal pools as part of the Natural Resources Protection Act, which already regulates land use near the state’s rivers, streams, ponds, wetlands and coast.
The rules would set up a 325-foot buffer zone around significant vernal pools and require landowners to get a permit if they want build on any of it. The zone would include a 250-foot buffer defining what’s called critical habitat and another 75-foot buffer around that, which is a standard buffer around all protected resources as defined in the Natural Resources Protection Act.
Andrew Fisk, director of land and water quality for the Department of Environmental Protection, said building in the 75-foot outer zone likely would be allowed without significant changes, but the rules get more stringent within the 250-foot or four-and-one-half-acre buffer.
Like other violations of the Natural Resources Protection Act, landowners could be fined or required to alter or tear down structures if they don’t follow the rules.
Rep. Robert Daigle, R-Arundel, the ranking minority member of the Natural Resources Committee, thinks that’s not fair because most people can’t easily tell if the rules apply to them.
“The public can’t read this law and decide if it means their backyard,” he said, and yet they could be forced to tear down a structure or pay hefty fines as part of the “pretty heavy” penalties under the protection act.
Daigle would like to see his committee, which is scheduled to vote Feb. 28 on a recommendation to the full Legislature, review the radius of the land involved.
Massachusetts, for example, which has identified 2,800 vernal pools statewide, requires a buffer zone of 100 feet, and the local ordinance in Falmouth is 75 feet.
He also would like to consider phasing in the new regulation and allowing “leeway” for those people who make “honest mistakes.”
“It’s essential for us to go slow,” he said, so the public can understand “if it means them too.”
Daigle does not support using the “full weight” of the Natural Resources Protection Act to punish those who violate vernal pool rules, because unlike putting in an illegal dock on a pond, people can’t always see what they’re supposed to protect. “Using a heavy hand with vernal pools would be wrong,” Daigle said.
Rep. Ted Koffman, D-Bar Harbor, the co-chairman of the Natural Resources Committee, agrees vernal pool is a new word in the habitat vocabulary, but that doesn’t make them any less important.
“Just like eagles like a high tree to nest,” Koffman said, vernal pools are critical breeding areas for small creatures like spotted salamanders, wood frogs and fairy shrimp.
Some rarer species also breed in vernal pools, including the Blanding’s turtle, spotted turtle, wood turtle, ribbon snake, four-toed salamander and the elusive ringed bog-haunter dragonfly.
Koffman said there is a lot of misunderstanding about the proposed rules. It is not a building ban, he said, but “within the 325-foot zone, you need to get a permit to develop in that area.”
Part of the intent of the rule is to keep open a path from the pool to upland forest, where amphibians and reptiles live when they’re not in the water, and to maintain some vegetation.
Koffman said the rules would be enforced just like they are now for wetlands protection, where property owners need to be aware of what’s on their land before they make changes.
“It isn’t like were going to have helicopters in the sky,” or environmental inspectors looking for vernal pools, he said. “We don’t have the resources for it.”
Fisk of the DEP said figuring out if you have a significant vernal pool on your property isn’t as hard as it sounds.
A landowner can easily identify a pool, which is a depression intermittently filled with water. Determining whether it is a significant breeding ground requires “a little bit of training,” he said, and is based on “identifying egg masses, and they’re large.”
Landowners who believe they have significant pools can pay a consultant to certify it or the DEP will come out and do it for free, using its permitting and compliance staff already in the field.
“Avoid and then minimize” the impact, is the rule of thumb when dealing with a vernal pool or any wetland, Fisk said. If a landowner wants to build in the buffer zone, a permit is needed and mitigation could be required, like putting in a driveway with an arch culvert to allow amphibians to pass through.
One problem is the vernal pools are only teeming with life during a short time in the spring, which Rep. Daigle worries could catch new property owners unaware.
“In February you buy a piece of property and in the first week of May you find some fairy shrimp (in a pool) which wasn’t there in February. You can’t build a home there,” he said, and the unwitting buyer will find out, “my land is not worth what I paid for it.”
The Maine Association of Realtors has called for changes in the proposed rule that would allow landowners to determine if they have significant vernal pools in times other than the peak breeding period in spring. One idea is to estimate the abundance of vernal pool breeders in the immediate area by trapping them.
Real estate agents also want clarification on whether all construction has to stop during breeding season and who is qualified to determine a pool of significance. They also want to reduce the critical buffer zone from 250 feet to 100 feet, with any extension beyond that applied on a case-by-case basis.
Koffman said he is bothered by the real estate industry’s opposition to the measure because all it is doing is trying to protect the state’s natural habitat, which is “part of the Maine brand.”
“The real estate industry benefits as much as anybody,” from that brand, Koffman said, but instead of supporting environmental regulations, “they’re there to try and snuff things out.”
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