December 06, 2021

Beware of vernal sins

Any kid growing up in the woods of eastern and northern Maine, come spring, has kicked over a decaying stump or rolled a rotting log looking for a spotted salamander in Grandma’s woodlot. He has had an introductory music lesson from the cacophony of wood frogs that trill in the forest. Little does he know that under proposed chapter 335, Section 9(b)(1) of State Environmental Protection Rules just 40 egg masses of that ubiquitous frog found in just one swale could deny Grandma her opportunity to sell more than seven acres of her woodlot. Will eggs from the state insect, the black fly be next?

Enter Maine’s Kafkaesque world of dark environmentalism. For the average rural Mainer, the eco-terrorism against Plum Creek pales by comparison. Casinos may now be acclaimed but beware of vernal sins.

Rural Mainers love their streams and forests, they value their deer yards, pristine views, shoreline and coastal wildlife and shore bird habitat, empathize with protections of genuinely endangered species and unique and special sites. They weigh in on large developments and subdivisions and value constructive regulation for the public good. But, mind numbing bureaucratic procedures, coupled with a belief that large land owners and developers will do the heavy political lifting, can lull the small rural landowner into sleep, only to awake to find there has been yet another taking of private property rights. The current development of rules around “vernal” pools is such a cautionary tale.

A vernal pool is the part of the woods that is wet in the spring and then dries out in summer. It is something the northern two thirds of Maine was left with after the departing of the glacier. Unlike special environmental places, vernal pools are found almost everywhere the land is fairly flat. A so-called “significant vernal pool” is defined as one where one finds egg masses from wood frogs: not a brook, pond, bog, eagle’s nest, cedar swamp for deer or anything like that, just egg masses of the common wood frog. Let’s concede that and not build a house or road on such a vernal pool.

But, now read the fine print. To check for vernal pools a person who wants to sell a house lot must get a state-approved wood frog egg counter to come and count egg masses. Further, they are only allowed to do the counting during three weeks in May. And if they find too many egg masses of this extraordinarily common amphibian in that tiny temporary wet spot, an area with a radius of 325 feet falls under extensive regulation; that’s over 71/2 acres. Guess what? Grandma’s just lost development rights on an area the size of seven football fields.

Grandma may ask, how could the paper industry have missed this one? In case Grandma didn’t notice, the answer lies in Chapter 335, Section 9(c)(1) of the proposed rules: “forest management activity within 250 feet of a significant vernal pool does not require a permit…” She would then have to look to Chapter 335, Section 2(6) to learn about the other 75 feet. Industry’s vernal sin is forgiven, but not Grandma’s. It appears vernal sins are a function of situational ethics.

As any Mainer who has heard the wood frog chorus can attest, the story of the vernal pools has very little to do with environmental protection and has a lot to do with driving rural Mainers off the land, of depressing rural land prices and weakening the rural economy. Some may believe this intent is strategic and purposeful while others would say it is simply the unintended consequence of Grandma’s loss of her family land through death by a thousand bureaucratic slashes. It is a story of large impersonal government growing increasingly out of touch with the little people. Why else would the state exempt the forest industry but not the small landowner?

There is, of course, an opportunity for regulatory reform. Maine could replace what appears to be a somewhat prescriptive regulatory environment with “incentive regulations.” Instead of our current rules that say “the public wants a quality environment so state government will determine exactly what a citizen can and cannot do,” why not establish rules that simply say “grandma can do what she wants to do provided she can demonstrate she will do no harm.”

This is neither novel nor rocket science. Act 250 in Vermont is but one example of how it can be done. Why not simply bring our regulatory climate into the 21st century and, God willing, the unintended negative consequences of regulation could, as the vernal pools of summer, simply fade away.

William Beardsley is the president of Husson College. His doctoral dissertation was on the resolution of conflicts in multiple-use forest resource management.

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