Downeast Coastal Press
April 17, 2007

Down–Easters Testify in Augusta Against Restrictive “Shorebird Habitat” Law

By Fred Hastings

It was standing–room–only in Augusta on April 10, as defenders of property rights and environmental activists squared off before the Legislature's Natural Resources Committee. The panel, following a public outcry, is considering several bills that would revise last year's controversial land–use restrictions and requirements established under LD 1981.

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Opponents of the new land–use controls far outnumbered supporters at the hearing, with a large contingent from Washington County, which has extensive undeveloped coastline compared with the rest of the state. Those testifying expressed as much dismay over how the bill became law as they did about the law itself, insinuating that environmental advocacy groups, their political allies and the state bureaucracy passed the legislation in an anti–democratic manner. They accused supporters of avoiding a comprehensive and open debate, not only with the public, but the Legislative rank–and–file, where several members who voted for it as emergency legislation later said they were not aware of the far–reaching new authority given to state agencies in new DEP rules not spelled out in the legislation itself. The expanded powers allow the Department of Environmental Protection to restrict development within 250 feet of a shoreline designated by the DEP as “shorebird areas,” “waterfowl wader habitat,” “vernal pools” and other classifications (see Downeast Coastal Press, October 3, 2006).

Those behind the new law conducted themselves “like thieves in the night,” said Richard Bedard of Columbia Falls, describing the new rules that caught municipal officials, planners, real estate agents and landowners by surprise late last summer. The law's impact came to light once the details were revealed in maps drawn up by the DEP and the Department of Inland Fisheries and Wildlife that identified the broadened extent of the areas subject to the new permitting rules.

“The law is suspect and smells badly,” said Bedard, who owns land in Harrington affected by the new rules. He said that the process followed by supporters was a “betrayal of the public trust,” including violation of the spirit of the state law requiring that owners be notified in advance of pending imposition of resource protection zones.

Dan Harris, a Boothbay selectman, told the committee members they needed to communicate with the public better before passing binding laws with the sweep of LD 1981. “It's not very comforting to find out about these things after the fact,” he said.

Bob Allison, who lives in a waterfront subdivision in Steuben that includes a homeowners' association, said the approach taken by promoters of LD 1981 made him “feel threatened, rather than brought into the process in a useful way” to protect shorebirds and other wildlife.

Mark Cenci of North Yarmouth, a land–use consultant, voiced a common theme of opponents: that supporters of land–use restrictions often were flippantly dismissive of the resulting impact on landowners, reflecting an attitude of unseriousness with respect to property rights.

Cenci said that most public services such as roads and schools are used and paid for by everyone, but environmental regulations are written so that a minority – landowners – bear the entire cost. “This is un–American,” he said, creating a sense of antagonism, where “people are afraid because they don't know what the future will hold for them.”

Others, describing themselves as environmentalists and Democrats, also testified against LD 1981's expanded restrictions.

Marina Delune of Belfast, a social worker who considers herself a “strong environmentalist,” said she was “embarrassed” to be testifying in opposition. She recounted how shore–land that she and her best friend recently bought in Stockton Springs with their combined life savings, assessed at $250,000, has been rendered nearly worthless and unbuildable by the new law. She also told, based on stories she's heard, of how frightened she was of the DEP.

Rep. Jim Schatz (D–Blue Hill) endorsed Cenci's earlier testimony, saying that for many of his constituents, “land constitutes their retirement,” and regulations restricting land use and lowering its value is in some cases “catastrophic.” There is an unfortunate trend for many local decisions to be transferred to the state, he said, “and as a good Democrat, it's hard for me to say those words.”

Addison resident Roger Yochelson testified that the DEP has worked closely with environmental advocacy groups in determining how to respond to the public opposition to LD 1981. “The fear of a backlash was discussed by DEP and others through e–mails obtained under freedom of information laws,” he said. “The no–cut zone was a political trade–off with Maine Audubon. As the DEP commissioner has said, this is the political arena in which this law is being developed.”

Supporters Cite Decline of Bird Populations

DEP Commissioner David Littell, in two lengthy statements before the legislative committee, voiced themes common to all the supporters, including emphasis claiming “sound–science” as justification for the restrictions on private landowners, that the new rules were an extension of earlier laws under the Natural Resource Protection Act, and the Legislature's continuing intent with regard to “protecting the environment.”

Whereas opponents raised concerns that the new rules give state agencies expansive arbitrary powers that negate due process, equal protection and property rights guarantees, Littell's and other supporters' claims emphasized that the agencies were very amenable to “working with” people in an effort to allow them to build on their land.

Jodi Jones of Maine Audubon reiterated her organization's strong support for the new law and its opposition to the laws seeking revisions based on concerns expressed by property owners.

Jones said her overarching message was that “air, water and wildlife resources are publicly owned resources” and that she was “enthusiastic” about protecting them.

“I would like to see more of us connecting with nature,” said Jones. “And there's been a lot of talk about the nature deficit disorder and our need to connect... By protecting these resources there's an opportunity to do that.”

Environmental advocates serving on community groups in Falmouth and in Wayne, where vernal pool mapping is under way, also spoke in favor of the new law, saying towns will not come up with regulations on their own.

Darrin Kelly of Gouldsboro, who operates an eco–tourism business, citing comments about human disturbance of shorebirds, said he “was part of the problem” because of his sea kayaking trips escorting his customers to offshore islands where seabirds reside.

He also said that his 30 acres of shorefront has been devalued by the new law, and he views this as a worthy sacrifice on his part, mitigating any disturbance he might have caused.

Kelly said much of the opposition to the new law reminded him of the “hysteria” that surrounded the listing of the Atlantic salmon under the Endangered Species Act. The aquaculture industry Down East declined not because of the listing, he said, but because of “global markets.” The listing opens up business opportunities for “eco–tourism,” he said.

Betsy Duncan called for retaining the full 250–foot setback everywhere, “a very small intrusion into otherwise unrestrained, freewheeling development [that] has produced an outsized howling that has resulted in this meeting today.” When asked by a legislator on the panel how she defines “significant wildlife habitat,” Duncan responded that for her it is whatever “is defined in the law.”

Norman Famous, a biologist from Augusta and Machiasport who has done many studies for state and federal agencies during the past 30 years, was the only independent scientist to speak at the hearing, offering testimony that buoyed both sides of the debate.

For proponents, he offered his research that shows a significant decline in shorebird populations along Maine's coast. He said that some could be attributed to “human disturbance,” but scientists were “not sure why in other cases.”

For those saying LD 1981's restrictions were too draconian, Famous offered reinforcement, saying the 250–foot setback for shorebird feeding areas was not necessary, declaring “75 feet to be adequate” protection for feeding areas.

He declined to endorse a 250–foot buffer for roosting shorebirds, saying the area needed was “site specific” and that in the cases of many shorebirds “little room was needed.”

An audio transcript of testimony offered at last week's hearing is available on the Internet at http://tinyurl.com/2366zh.

Sen. John Martin: Support Koffman's Bill or 'Original Law Stays'

Last year's LD 1981 was sponsored by Rep. Ted Koffman (D–Bar Harbor), on behalf of the Department of Environmental Protection and Maine Audubon. Co–chairman of the Natural Resources Committee, Koffman is the chief sponsor of LD 1477, DEP and Audubon's response to the criticism of LD 1981. It reduces some habitat zones from 250 feet to 75 feet, but explicitly further entrenches controls within them, including prohibitions on clearing vegetation for a view.

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Koffman's bill also moves direct authority for land–use prohibitions from DEP to Inland Fisheries and Wildlife and removes requirements for revealing maps of freshwater wetlands, one of the key elements that last fall brought the full effect of LD 1981 to many people's attention.

Rep. Schatz, in his testimony, was cool to Koffman's LD 1477, saying he was “fearful that the evolution of this LD might create some of the same things [as LD 1981].”

During the hearing, Koffman upon occasion revealed his sympathies and antipathies, which reflect his work as an administrator at the environmentalist College of the Atlantic and a director of Maine Audubon. Displaying a large “Clean Water” poster promoting the environmental organization Chewonki Foundation, pinned to the wall directly behind his seat at the head of the panel, Koffman ordered placards brought by some defenders of property rights removed from the lectern used by those offering testimony. At one point in the proceedings he joked about “adopting a vernal pool.”

Sen. John Martin (D–Eagle Lake) is co–chairman of the Natural Resources Committee with Koffman, and his comments and demeanor revealed his reputation as a Democratic power broker, laying bare the clout he holds as a long–serving legislator, former speaker of the House and current assistant Senate majority leader.

Although Rep. Kevin Raye's (R–Perry) bill, LD 1014 – which exempts existing lots from controls but still allows newly subdivided land to be controlled within a habitat overlay extending to either 75 feet or 150 feet instead of the 250 feet imposed last year – has bipartisan co–sponsorship support representing every county in Maine as well as a majority of the Senate, Martin made it clear that Koffman's bill will be the baseline for any legislation coming out of the committee.

In an aside, Martin told opponents that if Koffman's bill – with whatever revisions were to be agreed upon by the committee – doesn't pass, then the “original law stays.”

Copyright © 2007 Downeast Coastal Press, All Rights Reserved. Posted by permission.

More on the “habitat” land control agenda for Maine: www.moosecove.com/propertyrights/index.shtml#habitat