Downeast Coastal Press
April 3, 2007

Hearings Scheduled on Revisions to “Habitat" Land-Use Prohibitions

By Fred Hastings

The Legislature's Natural Resources Committee has scheduled hearings for April 10 in Augusta on several bills that would revise last year's controversial “bird habitat'" land-use prohibition rules.

The law grants new powers to the Department of Environmental Protection to restrict development within 250 feet of a shoreline designated by state agencies as “shorebird areas," “waterfowl wader habitat," “vernal pools” and other classifications.

The law (LD 1981) sailed through the Legislature last year with bipartisan support, championed by environmental groups and Rep. Ted Koffman (D-Bar Harbor), co-chairman of the Natural Resources Committee, who moved the bill as emergency legislation.

Signed into law by Gov. John Baldacci, the bill took effect June 8, 2006, but it wasn't until several months later that its far-reaching effect began to be felt by local towns, planners, real estate agents and landowners, who say they were given no notice of the sweeping new restrictions.

The negative reaction was prompted in part by the issuance of new maps depicting the extent to which the 250-foot setback had been applied, especially in largely undeveloped Washington County compared with southern and mid-coastal Maine.

After the revelations, several eastern Maine House members who voted for it said they were unaware of the 250-foot setback provision, as promoters of the bill focused on other aspects, including a discussion on “vernal pools.”

Following the public outcry, several area solons said LD 1981 received too little public input, legislative scrutiny and debate. Downeast legislators Rep. Ian Emery (R-Cutler) and Sen. Kevin Raye (R-Perry) said that like many bills coming out of committee with a unanimous “ought to pass" recommendation, LD 1981 received little investigation by most legislators. It passed in the Senate “under the hammer," with no recorded roll-call vote.

Five Bills Are Reforms; One Extends Controls

All of the bills except one are partial reforms in different ways and to different degrees. None of them fully repeals the new bird habitat overlay controls, and one, LD 1477, has aspects that extend control.

• Rep. Koffman (D-Bar Harbor) LD 1477: On behalf of the DEP and Maine Audubon, LD 1477 reduces some habitat zones from 250 feet to 75 feet, but explicitly further entrenches controls within them, including prohibitions on clearing for a view. It moves direct authority for land-use prohibitions from DEP to Inland Fisheries and Wildlife and removes requirements for revealing maps of freshwater wetlands. Koffman is the House chairman of the Natural Resources Committee, an acknowledged director of Audubon, and was responsible for inserting the new rules included in last year's LD 1981 and for the process followed in enacting the legislation. (www.mainelegislature.org/legis/bills/LD.asp?LD=1477)
  
  
• Sen. Kevin Raye (R-Perry) LD 1014: 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. The reductions explicitly apply to inland as well as shoreline controls, and add additional protection of rights for some water-related activity such as clamming. LD 1014 has bipartisan co-sponsorship support representing every county in Maine as well as a majority of the Senate. (www.mainelegislature.org/legis/bills/LD.asp?LD=1014)
  
  
• Rep. Henry Joy (R-Crystal) LD 1430: Requires the state to pay annual rent for land restricted in a habitat overlay. (www.mainelegislature.org/legis/bills/LD.asp?LD=1430)
  
  
• Rep. Jon Hinck (D-Portland) LD 1319: Requires a building setback of 100 feet in a habitat overlay in subdivisions of less than 10 lots and imposes control over the surrounding land in a 250-foot zone for any property in a habitat overlay. (www.mainelegislature.org/legis/bills/LD.asp?LD=1319)
  
  
• Rep. Ian Emery (R-Cutler) LD 258: Confines all bird habitat regulation to a 100-foot deep overlay instead of 250 feet. (www.mainelegislature.org/legis/bills/LD.asp?LD=258)
  
  
• Rep. Kenneth Fletcher (R-Winslow) LD 326: Exempts existing lots from the “vernal pool” controls and requires that bird habitat overlay controls be treated as “major substantive rules,” thereby requiring legislative approval. (www.mainelegislature.org/legis/bills/LD.asp?LD=326)

For full details on provisions in these bills, consult the links given above. The hearing for all the bills is scheduled for 1 p.m., Tuesday, April 10, in Room 214 of the Cross Building on the Statehouse grounds in Augusta.

The state hearing web page is http://tinyurl.com/2dhe2k.

Sen. Raye Offers Statement, Update on Legislative Activity

Sen. Kevin Raye (R-Perry) last week offered the following statement on LD 1014, his bill addressing concerns on the 250-foot setback law:

“I introduced LD 1014, 'An Act To Ensure Reasonable and Equitable Land Use Opportunities Near Shorebird, Wading Bird and Waterfowl Habitat,' to correct the overreaching and unreasonable restrictions on the first 250 feet of land abutting coastal and inland waters designated as shorebird, wading bird or waterfowl areas. I believe this bill promotes a reasonable balance that restores landowner rights while recognizing the significance of the more sensitive roosting areas.

“The bill's key provisions would

• repeal the 250-foot setback for shorebird feeding and staging areas, which constitute the vast majority of affected property, restoring the pre-existing 75-foot setback;
  
  
• reduce the 250-foot setback for shorebird roosting areas to 150 feet;
  
  
• restore the pre-existing 100-foot setbacks along inland waterfowl and wading bird areas;
  
  
• exempt activities of clammers and marine worm diggers; and
  
  
• grandfather lots in existence prior to Sept. 12, 2006, the date when maps depicting affected areas first became publicly available.
  
  

“A bipartisan coalition of 50 legislators representing all 16 counties have come together to cosponsor LD 1014. Those cosponsors include an outright majority of the Maine Senate, and the entire Washington County legislative delegation.

“An alternative proposal unveiled by DEP Commissioner David Littell several weeks ago made one step forward by agreeing to restore the 75-foot setback in shorebird feeding areas (the vast majority of affected coastal property), but took a step backward by imposing strict new cutting restrictions that would prohibit affected coastal landowners from ensuring a view of the water. Many property owners purchased their properties specifically to enjoy the view. Others own property that has been in their families for generations and have long planned that their children or grandchildren will one day build homes. Fairness dictates that we correct the mistakes of the ill-advised law without devising an alternative way to similarly impact landowners and devalue their property. A better solution may be to compromise on a 100-foot setback without the new cutting restrictions.

“Littell's proposal also leaves intact the 250-foot setback on inland waters, which I believe must also be addressed. While this portion of the law has not received as much media attention, it has a widespread impact on property owners across the state.

“I am currently engaged in negotiations with key legislators from both sides of the issue to bridge differences and come up with a consensus plan. I am hopeful that the Natural Resources Committee and the full Legislature will ultimately be able to come together to enact a bill that affords reasonable protection for both people and birds. That includes building in protections to ensure that regulated areas will not be expanded in the future, and that this law cannot be used to curtail clamming and worm digging.”

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