September 23, 2020


Although it has been in the works for years, a recent rule change, requiring a setback of 250 feet for development near shorebird habitat, is getting a lot of criticism, especially from Down East. Because of the chorus of discontent, the governor is prudent to ask the Department of Environmental Protection to review the situation.

That review should include the possibility of differentiating between habitat that is essential for bird survival and habitat that is less important. Maine’s setback should be compared to other states’ and it if is much more stringent that must be justified.

One criticism the department can’t resolve is the complaint from lawmakers, developers and real estate officials that they were not aware of the pending change. The rule change is the culmination of nearly 20 years of work and was approved by the Legislature twice in the past two years. Lawmakers, developers and real estate officials who say they were not aware of the pending change need to pay closer attention to legislative and agency actions.

In 1988, the Legislature passed the Natural Resources Protection Act, which required landowners to obtain permits to build, dredge, drain or otherwise alter wetlands and protected natural resources. The act was signed by then Gov. John McKernan. In 1994, the act was amended to extend protection back 250 feet from shorelines.

This provision was not enforced because bird habitat had not been mapped. The Legislature, last year, directed the DEP to develop rules on protecting habitat. The directive covered four areas: vernal pools, inland waterfowl, tidal and shorebird habitat.

This rulemaking including public hearings and a public comment period. The new rules then went back to the Legislature, where another public hearing was held, before being passed, unanimously in the Senate and with only one dissenting vote in the House.

During the process, rules regarding vernal pools, seasonal water bodies that are home to young frogs, salamanders and other animals, received the most attention.

Now that the rules are in effect, attention has turned to shorebird protection and the increase in the setback from 75 to 250 feet. This has prompted some developers and landowners to complain that they can no longer use their property. Shoreland bird habitat, according to state maps, covers about 17.5 percent of Washington County’s coastline and nearly 17 percent of York County’s. The habitat is mostly in mud flats or on beaches, areas that are not sought out for development.

Decreasing the size of protected areas, by focusing, say, on nesting areas and not habitat in general, if that is biologically justified, should mute some of these concerns. Working with landowners so they understand the scope of the law, which the DEP is already doing, should also help.

Sen. Kevin Raye, who represents Washington County, is drafting a bill to either repeal the rules or ease their restrictions. This will prompt the Legislature to belatedly scrutinize the rule changes.

That debate should build on, not undo, the work the DEP has already done.

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