Shorebird law stirs coastal anger

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Weighing in at an ounce or less, the semipalmated sandpiper is diminutive even among the ranks of small shorebirds that migrate through Maine.

But this tiny resident of the Canadian Arctic is one serious – but fragile – world traveler.

Every year, thousands of semipalmated sandpipers – named for their partially webbed feet – stop off at Maine’s coastal mudflats to fatten up on invertebrates before embarking on a 2,500-mile, nonstop flight to South America.

Alarmed by declining populations of sandpipers and other shorebirds, Maine officials passed a controversial law last year that aims to minimize development near habitat for migratory shorebirds as well as some inland waterfowl.

The law, more than 20 years in the making, lasted less than a year.

On Tuesday, a legislative committee will hold a public hearing in Augusta on proposals to change or scrap the law altogether.

Coastal landowners, town officials and business interests are urging lawmakers to change or scrap a law they claim could decimate coastal property values and hamstring economic development in rural areas. Much of the opposition comes from Washington County, where an estimated 17 percent of the land base would be affected by the current law.

The state Department of Environmental Protection, under intense pressure from critics, has offered a compromise that would allow development closer to shorebird areas and reduce by two-thirds the amount of land affected.

But some landowners are pushing for a total repeal.

“The whole thing leaves a bad taste, the way they did it,” Richard Bedard said last week while standing on land he owns in Harrington that is affected by the law. “It doesn’t make me want to compromise.”

What the DEP did was carry out a legislative mandate, first passed in the 1980s, to identify and protect migratory shorebird habitat. The new law requires a 250-foot setback between new development and areas where the birds and some inland waterfowl feed, congregate and rest.

DEP officials stress that the buffer zones are meant to guide development into more appropriate locations, not prohibit it altogether. The DEP staff works with landowners and will, in essence, fudge the buffer requirements when no other options exist.

Biologists and conservation groups say additional protection is merited.

A recent study by federal and private researchers found that 30 species of shorebirds recorded in surveys in the northeastern U.S. and southeastern Canada declined by 36 percent between 1980 and 2000.

Protecting the skittish birds from disturbance may help avoid population levels dropping to the point that more heavy-handed federal protection is needed, bill supporters said.

“I’m just concerned about all of the species, seeing all of these numbers going down,” said Lindsay Tudor, a biologist with the state Department of Inland Fisheries and Wildlife. “If we can protect the habitat, we can maintain what we have and not reach those critical levels.”

Under the compromise proposed by the DEP, the setback would drop from 250 feet to 75 feet near feeding and foraging areas. The 250-foot buffer would remain in place for roosting areas. Landowners also would face new restrictions on cutting and removing trees and vegetation.

DEP Commissioner David Littell said he understands that some landowners are angry at the thought of losing the right to build closer to the water. He said the reality is that the rules are flexible and the department has not rejected any building permits received since the law’s enactment, Littell said.

“It’s in the political arena right now,” he said. “But we are trying to make sure the discussion is based on the most solid science.”

The law is back in the political realm because of the intense backlash from landowners who fear home sites they bought – whether for a future retirement home or as an investment – are worth substantially less without a view. Bankers also have expressed concern about mortgages on devalued land, and town officials are concerned about loss of tax revenue.

Bedard, a Maine native who moved to Washington County 40 years ago, paid about $50,000 for several dozen acres on a peninsula in Harrington in the mid-1980s when the property came through his real estate office.

The former teacher said he loved the location, wedged between a quiet cove and Pleasant River Bay, and figured it might be developable one day. He has kept the property open to the public.

Current law would require Bedard or future owners to build 250 feet from the cove – an impossibility on some parts, but not all, of the narrow property. Bedard now questions whether the land is worth the $600,000-plus assessed by the town recently.

Ten years ago Bedard fought to require that towns notify landowners well in advance of any move to put shore land in protective zoning.

Standing on his property’s rocky shoreline, Bedard said he believes the new law undermined what had been a successful shoreline protection program.

“I’m not upset about my own property, and I probably should be,” Bedard said. “It’s valuable. I just don’t like the way they did it.”

Carl Bragg is more incensed – and less diplomatic.

The co-founder of a group called Property Rights Advocates of Maine, Bragg calls the law “one of the largest land takings in the history of the state” and predicts dire economic and political consequences if it stays on the books, even if amended.

“The mood down here is somber right now,” Bragg said of Washington County. “I think they should apologize for what they did and come down here and restore landowner relations.”

Rep. Ted Koffman, co-chairman of the Legislature’s Natural Resources Committee and sponsor of the DEP’s compromise bill, acknowledged that the committee and the full Legislature voted on the bill last year without knowing its true impact.

Most of the discussion last year focused on setbacks from vernal pools, which are shallow depressions that become breeding grounds for amphibians during wet months. Vernal pools were a relatively new issue for lawmakers, whereas shorebird protection has been talked about for decades, Koffman said.

“We really dug into that [vernal pools] issue so much that we may have taken for granted that the other parts of the bill had been thoroughly vetted,” he said.

Koffman believes changes are needed, although he plans to propose alternatives to the DEP’s compromise.

Instead of 75 feet from feeding and foraging areas, as DEP has proposed, Koffman would like to see the setback at 100 feet. But he would remove the new cutting restrictions in DEP’s proposal. The buffer near roosting areas would stay at 250 feet.

The Bar Harbor Democrat has been talking with his colleagues on and off the committee to build support for his compromise.

“I’m not saying some people won’t be disappointed,” he said, “but I don’t think we are going to be plummeting people’s property values by going from 75 feet to 100 feet.”

Maine Audubon, one of the most vocal proponents for additional protections, is also supportive of DEP’s compromise.

Jenn Burns, legislative liaison for Maine Audubon, said the group is willing to accept smaller buffers near feeding and foraging areas because birds would be able to spread out away from the shoreline during low tide.

Roosting areas should remain at 250 feet because the birds are more sensitive to disturbance while resting together, she said.

Maine Audubon has come under heavy criticism for its strong support for the original bill. Burns said she understands landowners’ concerns and that the organization is sending out people to meet informally with Down East residents to hear their thoughts and explain Audubon’s positions.

“I think one of the reasons why this didn’t go over as well as we had hoped is because there wasn’t that dialogue,” Burns said.

The Natural Resources Committee has scheduled a public hearing on shorebird-related bills at 1 p.m. Tuesday, April 10, in Room 214 of the Cross State Office Building in Augusta. The hearing will be broadcast live on the Legislature’s online audio service at http://janus.state.me.us/legis/audio.