The Department of Environmental Protection is being asked to come up with assurances that regulations to protect vernal pools across the state won’t prevent single-family lot owners from developing their property.
The Natural Resources Committee Tuesday identified small landowners as those with the most to lose under a proposed change to the Natural Resources Protection Act that would add significant vernal pools to habitat that needs to be protected.
Under those rules, landowners would need a permit if they wanted to develop in the roughly four-and-a-half acres around significant vernal pools – home to frogs, salamanders, turtle and fairy shrimp.
Rep. James Annis, R-Dover-Foxcroft, a committee member, said a vernal pool on a five-acre lot would trigger the need for a permit for virtually anything a landowner wanted to do. “Could something be written into the rules that exempts single-family lots?” he suggested.
Rep. James Schatz, D-Blue Hill, said he was not just concerned about single-family lots, but small property owners “with 50 to 100 acres they want to turn into five-acre lots.”
The committee asked the department to work on language that protects small lot owners and others who could be unwittingly caught up by the new regulation and report back next Tuesday, March 2.
At issue is a rule change that would require landowners to determine if they had significant vernal pools on their property before developing it. Vernal pools are small depressions in the landscape that fill up with rain or melted snow in the spring and serve as a breeding ground for amphibians and other creatures. The pools often dry up in the summer and remain so until the following spring.
Significance would be determined by the number of egg masses in the water or in a few cases where they are home to rare or endangered species. In Maine, those include the Blanding’s turtle, spotted turtle and ringed bog-haunter dragonfly, which is believed to live in only a handful of sites in the entire state.
Once a pool has been deemed significant, building within a 325-foot radius of it would require a permit. Of that protected area, 250-feet is considered significant habitat and 75 feet beyond that is the normal buffer around other habitats protected under the law, including rivers, ponds and wetlands.
Judy Gates, who worked on the DEP’s proposed vernal pool rule, said in all her years with the department she had seldom denied a permit for development, and never on single-family lots.
“In the eight years I was at DEP, I never ran across any situation where we banned development on a single family lot” to protect the natural resource, Gates said. Instead landowners are asked to first avoid the protected land and then to minimize the impact on it. The same would be true of protecting vernal pools, she said.
The committee seemed less concerned with developers of big-box stores or large subdivisions because they have more options than single-family lot owners by virtue of having more space. They typically have the land to steer clear of the protected zone or designate it as green space.
“This really comes down to single-family homes,” said Rep. Robert Daigle, R-Arundel, the ranking Republican on the committee and an environmental consultant, who agreed with the idea of exempting single-family lots from the rules all together.
Sen. Scott Cowger, D-Kennebec County, co-chairman of the committee, said he would like to see a permitting process for single-family lots that “virtually guarantees buildability.”
“It may not be a total exemption,” he said, but an “easier process” for building single-family homes.
The department also is being asked to come up with language that spells out in the law what Gates said was normal practice in the department.
“There seems to be a lot of discretion in the department,” said Rep. Schatz. “I would hope that would always be the case and there would be language (in the law) that would mirror that discretion.”
One area the committee wanted spelled out was how a landowner could get off the “significant” list if their vernal pool became less productive. The standard they want codified is that if significant egg masses were not found in the pool for three years running, the pool would be taken off the protected list.
Daigle also asked for language protecting landowners who think they are following the rules based on a field determination by the department, and then find out they are not. He wanted assurances they would not have to tear down what they built. Spelling it out, he said, “would help a lot.”
“The more I learn about this, I’m getting more comfortable,” Daigle said. The trick now, he added, would be getting the public to understand the new rules.
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