HP0729, LD 1040, item 1, An Act Regarding Permitting under the Natural Resources Protection Act

An Act Regarding Permitting under the Natural Resources Protection Act

Be it enacted by the People of the State of Maine as follows:

Sec. 1. 38 MRSA §480-B, sub-§1-C is enacted to read:

1-C. Artificial turf. "Artificial turf" means an artificial product manufactured from synthetic material that simulates the appearance of natural turf, grass, sod or lawn.

Sec. 2. 38 MRSA §480-B, sub-§5-B, as enacted by PL 2011, c. 64, §2, is amended to read:

5-B. Impervious area. "Impervious area" means an area that is a building, parking lot, roadway or similar constructed area. "Impervious area" does not mean a deck , artificial turf or a patio.

Sec. 3. 38 MRSA §480-B, sub-§9, as amended by PL 2001, c. 618, §1, is further amended to read:

9. River, stream or brook. "River, stream or brook" means a channel between defined banks. A channel is created by the action of surface water and has 2 or more all of the following characteristics.

A. It is depicted as a solid or broken blue line on the most recent edition of the U.S. Geological Survey 7.5-minute series topographic map or, if that is not available, a 15-minute series topographic map.

B. It contains or is known to contain flowing water continuously for a period of at least 6 months of the year in most years.

C. The channel bed is primarily composed of mineral material such as sand and gravel, parent material or bedrock that has been deposited or scoured by water.

D. The channel contains aquatic animals such as fish, aquatic insects or mollusks in the water or, if no surface water is present, within the stream bed.

E. The channel contains aquatic vegetation and is essentially devoid of upland vegetation.

"River, stream or brook" does not mean a ditch or other drainage way constructed, or constructed and maintained, solely for the purpose of draining storm water or a grassy swale.

Sec. 4. 38 MRSA §480-B, sub-§9-A, ¶B, as amended by PL 2009, c. 295, §1 and PL 2011, c. 682, §38, is further amended to read:

B. "Significant groundwater well" does not include:

(1) A public water system as defined in Title 22, section 2601, subsection 8 , except that "significant groundwater well" includes: ;

(a) A public water system used solely to bottle water for sale; and

(b) Any portion of a public water system that is:

(i) Constructed on or after January 1, 2009;

(ii) Used solely to bottle water for sale; and

(iii) Not connected to another portion of the public water system through pipes intended to convey water.

For purposes of this paragraph, a public water system that is used solely to bottle water for sale includes a public water system that bottles water for sale and may provide a de minimus amount of water for other purposes, such as employee or other use, as determined by the department;

(2) Individual home domestic supply;

(3) Agricultural use or storage;

(3-A) Dewatering of a mining operation;

(4) A development or part of a development requiring a permit pursuant to article 6, article 7 or article 8-A; or

(5) A structure or development requiring a permit from the Maine Land Use Planning Commission.

Sec. 5. 38 MRSA §480-C, sub-§1, as amended by PL 2001, c. 618, §2, is further amended to read:

1. Prohibition. A Except as provided in section 480-E-2, a person may not perform or cause to be performed any activity listed in subsection 2 without first obtaining a permit from the department if the activity is located in, on or over any protected natural resource or is located adjacent to any of the following:

A. A coastal wetland, great pond, river, stream or brook or significant wildlife habitat contained within a freshwater wetland; or

B. Freshwater wetlands consisting of or containing:

(1) Under normal circumstances, at least 20,000 80,000 square feet of aquatic vegetation, emergent marsh vegetation or open water, except for artificial ponds or impoundments; or

(2) Peatlands dominated by shrubs, sedges and sphagnum moss.

A person may not perform or cause to be performed any activity in violation of the terms or conditions of a permit.

Sec. 6. 38 MRSA §480-C, sub-§4, as enacted by PL 2007, c. 399, §11, is amended to read:

4. Significant groundwater well. A Except for the establishment or operation of a significant groundwater well for a community public water system, a person may not perform or cause to be performed the establishment or operation of a significant groundwater well without first obtaining a permit from the department.

Sec. 7. 38 MRSA §480-D, first ¶, as amended by PL 2009, c. 615, Pt. E, §7, is further amended to read:

The department shall grant a permit upon proper application and upon such terms as it considers necessary to fulfill the purposes of this article. The department shall grant a permit when it finds that the applicant has demonstrated that the proposed activity meets the standards set forth in subsections 1 to 11, except that when an activity requires a permit only because it is located in, on or over a community public water system primary protection area the department shall issue a permit when it finds that and does not otherwise require a permit pursuant to section 480-C the applicant has demonstrated must demonstrate that the proposed activity meets the standards set forth in subsections 2 and 5.

Sec. 8. 38 MRSA §480-D, sub-§3, as amended by PL 2011, c. 653, §15 and affected by §33, is further amended to read:

3. Harm to habitats; fisheries. The activity will not unreasonably harm any significant wildlife habitat, freshwater wetland plant habitat, threatened or endangered plant habitat, aquatic or adjacent upland habitat, travel corridor, freshwater, estuarine or marine fisheries or other aquatic life.

In determining whether mining, as defined in section 490-MM, subsection 11, will comply with this subsection, the department shall review an analysis of alternatives submitted by the applicant. For purposes of this subsection, a practicable alternative to mining, as defined in section 490-MM, subsection 11, that is less damaging to the environment is not considered to exist. The department may consider alternatives associated with the activity, including alternative design and operational measures, in its evaluation of whether the activity avoided and minimized impacts to the maximum extent practicable.

In determining whether there is unreasonable harm to significant wildlife habitat, the department may consider proposed mitigation if that mitigation does not diminish in the vicinity of the proposed activity the overall value of significant wildlife habitat and species utilization of the habitat and if there is no specific biological or physical feature unique to the habitat that would be adversely affected by the proposed activity. For purposes of this subsection, "mitigation" means any action taken or not taken to avoid, minimize, rectify, reduce, eliminate or compensate for any actual or potential adverse impact on the significant wildlife habitat, including the following:

A. Avoiding an impact altogether by not taking a certain action or parts of an action;

B. Minimizing an impact by limiting the magnitude, duration or location of an activity or by controlling the timing of an activity;

C. Rectifying an impact by repairing, rehabilitating or restoring the affected environment;

D. Reducing or eliminating an impact over time through preservation and maintenance operations during the life of the project; or

E. Compensating for an impact by replacing the affected significant wildlife habitat.

Sec. 9. 38 MRSA §480-E, sub-§2, as amended by PL 2007, c. 353, §10, is further amended to read:

2. Water supply notification and review. If the resource subject to alteration or the underlying ground water is utilized by a community public water system as a source of supply, the applicant for the permit shall, at the time of filing an application, forward a copy of the application to the community public water system and the drinking water program of the Department of Health and Human Services by certified mail and the department shall consider Department of Health and Human Services and the community public water system may provide any comments concerning the application filed with the commissioner within a reasonable period, as established by the commissioner.

Sec. 10. 38 MRSA §480-E-2, as enacted by PL 2007, c. 353, §11, is amended to read:

§ 480-E-2. Delegation of review authority to the Department of Health and Human Services or to a community public water system

The commissioner may delegate review authority to determine whether an activity that requires a permit because it is located within a community public water system primary protection area meets the standards in section 480-D, subsections 2 and 5 if the activity does not in whole or in part otherwise require a permit pursuant to section 480-C. The commissioner may only delegate this review authority to the drinking water program of the Department of Health and Human Services or to a community public water system that demonstrates adequate technical capacity to perform the review. If review authority is delegated, a permit from the department shall issue or deny the permit and retains is not required and the department does not retain enforcement authority.

Sec. 11. 38 MRSA §480-Q, sub-§2-D, as enacted by PL 2011, c. 205, §3, is amended to read:

2-D. Existing crossings. A permit is not required for the repair and maintenance of an existing crossing or for the replacement of an existing crossing, including ancillary crossing installation activities such as excavation and filling, in any protected natural resource area, as long as:

A. Erosion control measures are taken to prevent sedimentation of the water;

B. The crossing does not block passage for fish in the protected natural resource area; and

C. For replacement crossings of a river, stream or brook:

(1) The replacement crossing is designed, installed and maintained to match the natural stream grade to avoid drops or perching; and

(2) As site conditions allow, crossing structures that are not open bottomed are embedded in the stream bottom a minimum of one foot or at least 25% of the culvert or other structure's diameter, whichever is greater, except that a crossing structure does not have to be embedded more than 2 feet.

For purposes of this subsection, "repair and maintenance" includes but is not limited to the riprapping of side slopes or culvert ends; removing debris and blockages within the crossing structure and at its inlet and outlet; and installing or replacing culvert ends if less than 50% of the crossing structure is being replaced. For purposes of this subsection, "existing crossing" includes but is not limited to an existing water or sewer line, culvert or natural gas pipeline.

Sec. 12. 38 MRSA §480-Q, sub-§9, as amended by PL 1989, c. 878, Pt. A, §111, is further amended to read:

9. Public works. A permit is not required for emergency repair or , normal maintenance and repair or replacement of existing public works which that affect any protected natural resource. An activity which that is exempt under this subsection shall must employ erosion control measures to prevent sedimentation of any surface water, shall may not block fish passage in any water course and shall may not result in any additional intrusion of the public works into the protected natural resource . This exemption does not apply to any activity on an outstanding river segment as listed in section 480-P;

Sec. 13. 38 MRSA §480-Q, sub-§17, ¶¶A to C, as enacted by PL 1995, c. 575, §1, are repealed.

Sec. 14. 38 MRSA §480-Q, sub-§17, ¶D, as enacted by PL 1995, c. 575, §1, is amended to read:

D. The activity does not occur in a wetland normally consisting of or containing at least 20,000 80,000 square feet of open water, aquatic vegetation or emergent marsh vegetation, except for artificial ponds or impoundments;

Sec. 15. 38 MRSA §480-W, sub-§3, as enacted by PL 2005, c. 548, §2, is amended to read:

3. Emergency action exemption. Notwithstanding section 480-C, if the local code enforcement officer , or a state-licensed professional engineer or a state-certified geologist determines that the integrity of a seawall, bulkhead, retaining wall or similar structure in a coastal sand dune system is destroyed or threatened, the owner of property protected by the seawall, bulkhead, retaining wall or similar structure may perform or cause to be performed the following activities without obtaining a permit under this article:

A. Place riprap, sandbags or other heavy nonhazardous material to shore up the threatened structure and leave the material in place until a project designed to repair or replace the structure is permitted by the department. After such emergency action is taken and within 5 working days after the imminent threat, the property owner must provide written notice to the department of the date the emergency action was taken and a description of the emergency action taken. Within 6 months following placement of any material pursuant to this paragraph, the property owner must submit to the department an application to repair or replace the structure. The material placed pursuant to this paragraph must be removed within 18 months from the date a permit is issued by the department; or

B. Make permanent repairs, to the extent necessary to alleviate the threat, to strengthen the seawall, bulkhead, retaining wall or other structure, to widen the footings or to secure the structure to the sand with tie-back anchors. A state-certified geologist, state-licensed professional engineer or other qualified professional must make the determination that the actions taken by the property owner in accordance with this section are only those actions necessary to alleviate the imminent threat and do not include increasing the height or length of the structure.

If a local code enforcement officer , or state-licensed professional engineer or state-certified geologist fails to determine within 6 hours of initial contact by the property owner whether the integrity of a structure is destroyed or threatened, the property owner may proceed as if the local code enforcement officer , or state-licensed professional engineer or state-certified geologist had determined that the integrity of the structure was destroyed or threatened.

Sec. 16. 38 MRSA §480-X, sub-§4, ¶B, as enacted by PL 1995, c. 460, §7 and affected by §12, is amended to read:

B. Activities occurring in freshwater wetlands, other than artificial ponds or impoundments, containing under normal circumstances at least 20,000 80,000 square feet of aquatic vegetation, emergent marsh vegetation or open water;

SUMMARY

This bill amends the Natural Resources Protection Act in several ways.

1. It excludes artificial turf from the definition of "impervious area."

2. It amends the definition of "river, stream or brook" to provide that a channel must have all 5 of the characteristics listed in the definition. Current law requires that a channel must have at least 2 of the characteristics listed.

3. It amends the definition of "significant groundwater well" to provide that public water systems are not significant groundwater wells.

4. It increases from 20,000 to 80,000 square feet the area of aquatic vegetation, emergent marsh vegetation or open water that a freshwater wetland must contain before a person is required to get a permit from the Department of Environmental Protection for activities adjacent to the freshwater wetland.

5. It provides that a person is not required to obtain a Natural Resources Protection Act permit from the Department of Environmental Protection for the establishment or operation of a significant groundwater well for a community public water system.

6. For determining if an activity unreasonably harms habitats or fisheries, it amends the definition of "mitigation" to provide that the Department of Environmental Protection may not consider whether an adverse impact of an activity can be avoided.

7. It amends the notification and comment requirements when a resource is used by a community public water system as a source of water supply.

8. It provides that the Department of Environmental Protection may only delegate review authority to the Department of Health and Human Services, Drinking Water Program or to a community public water system when an activity is located within a community public water system primary protection area and the activity does not otherwise require a Department of Environmental Protection permit under the Natural Resources Protection Act. It also removes the requirement to obtain a permit from the Department of Environmental Protection in such cases.

9. It includes existing water or sewer lines, culverts and natural gas pipelines in the permit exemption for existing crossings.

10. It provides that a replacement of existing public works does not require a Natural Resources Protection Act permit and it provides that the public works exemption applies to outstanding river segments.

11. It amends the exemption for activities that alter less than 4,300 square feet of freshwater wetlands.

12. It removes state-certified geologists from the list of professionals that may determine whether the integrity of a seawall or similar structure in a coastal sand dune system is destroyed or threatened for purposes of repairing the seawall or structure.

13. It amends the activities that are not eligible for Tier 1 or Tier 2 review when altering freshwater wetlands.

HP0729 LD 1040	Session - 128th Maine Legislature		LR 981 Item 1
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