Maine Coastal Program final Section 309 assessment

[From the U.S. Government Printing Office, www.gpo.gov]

Maine Coastal Program

Final Section 309 Assessment

January 16, 1992

Submitted to:
The National Oceanic & Atmospheric Administration
Office of Ocean & Coastal Resource Management
Washington, D.C.
oil

HT Program
393 Planning Office Augusta, Maine 04333
.M2
M3 Station No. 38 Tel. (207) 289-3261
1992

M A I N E C 0 AST A L P R 0 G RAY

FINAL SECTION 309 ASSESSMENT

January 16, 1992

C-4

Submitted to

The National Oceanic & Atmospheric Administration
Office of Ocean & Coastal Resource Management
Washington, D.C. 20235

rVZOperty Of CL@C Library

Maine State Planning Office Augusta, Maine 04333
State House Station No. 38 Tel. (207) 289-3261

Final Section 309 Assessment

CONTENTS

Page

INTRODUCTION AND SUMMARY 1

Introduction 1

Maine Coastal Program I

Coastal Zone Enhancement Program 1

The Public's Role in the Assessment Process 2

Response to Comments 3

Summary of Priority-Needs and Program Changes 10

Goal 10

Objective: Protecting sensitive coastal
areas 10

Priority Needs 10
Program Changes 10
Potential Projects 10

objective: Minimizing pollution of coastal
waters 11

Priority Needs 11
Program Changes 11 67
Potential Projects 11

Objective: Watershed, embayment and
estuarine planning 12

Priority Needs 12
Program Changes 12
PotentiaY Projects 12

Objective: Considering cumulative impacts
in environmental permitting 12

Priority Needs 12
Program Changes 13
Potential Projects 13

SECTION 309 ASSESSMENTS (separate papers)

1. OCEAN RESOURCES PLANNING

2. MARINE DEBRIS REDUCTION

3. PUBLIC ACCESS

4. COASTAL HAZARDS

5. ENERGY GOVERNMENT FACILITY
SITING & ACTIVITIES

6. COASTAL WETLANDS MANAGEMENT

7. ADVERSE CUMULATIVE & SECONDARY
IMPACTS OF DEVELOPMENT

10 8. SPECIAL AREA MANAGEMENT PLANNING

309intro.rpt

INTRODUCTION AND SUMMARY

INTRODUCTION

Maine Coa stal Program

Congress in 1972 enacted the Coastal Zone Management Act
(CZMA) to forge a partnership between federal, State and local
governments to improve coastal resource management. Maine
received federal approval of its Coastal Program pursuant to the
CZMA in 1978.

In 1986 the Legislature reaffirmed the State's strong
commitment to conservation, beneficial use and management of
coastal resources with enactment of nine coastal management
policies in the areas of port and harbor development, marine
resources management, shoreline management and access, hazard
area development, State and local cooperative management, scenic
and natural areas protection, recreation and tourism, water
quality and air quality.

Since 1978, Maine's Coastal Program has received federal
funding assistance for awide range of coastal management
activities. Federally-approved activities at the local level
have included small-scale waterfront acquisition and construction
projects, and preparation by coastal towns of comprehensive
plans, growth management and land use regulations', and harbor
plans. State and regional planning agencies have received grants
to provide technical-planning assistance to towns.

At the State level, Maine receives CZMA assistance for
enforcement of environmental laws in the coastal area, informing
the public of priority coastal issues, and policy development
regarding issues ranging from coastal access to growth
management, ocean use, and.protection of estuarine fish and
wildlife habitat.

Coastal Zone Enhancement Program

Federal Coastal Zone Enhancement Grants were established by
Congress in 1990 to provide States with additional incentives to
address emerging national coastal problems. The grants are
intended to encourage states with federally-approved coastal
management programs to undertake improvements addressing one or
more of eight specified coastal issues.

To establish Maine's eligibility to receive Coastal Zone
Enhancement Grants, the federal Office of Ocean and Coastal
Resources Management (OCRM) requires submittal of this Section
309 Assessment report, and a Section 309 Strategy to be submitted
in March, 1992. The Strategy is to identify projects which
address priority needs agreed upon by the State and the OCRM, and
which will lead to formally adopted changes in Maine's Coastal
Program.

Federal approval of Maine's Section 309 Strategy will
release $100,000 through July, 1992, for projects identified in
the Strategy. Preliminary figures for August 1, 1992 through July
31, 1993, range between $102,000 to $238,000, plus a potential of
up to $300,000 additional depending on the outcome of a
federally-sponsored coastal states competition.

The Public's Role in the Assessment Process

In May 1991, in order to determine the level of public
concern for fresh and tidal water pollution along with each of
the eight Section 309 issues, surveys were mailed to all 144
coastal municipalities and to over 400 additional environmental
groups, land trusts, coastal newspapers, Cooperative Extension
offices, regional planning agencies and State agencies.

About 15% of the surveys were returned. Three issues were of
highest concern, both coastwide and region by region: Fresh &
Tidal Water Pollution, Coastal Wetlands, and Cumulative Adverse
Impacts of Growth. Water pollution, of course, is a key aspect
of both wetlands amd cumulative impact issues, and wetland
protection is a primary though not the only concern of cumulative
impact analysis. More than 17% of the survey respondents
indicated strong concern that the public needs to be better
educated on coastal issues.

A summary of "Results of Initial Public Participation in the
Assessment Process," August 8, 1991, is available. The summary
reproduces all written comments received, and was submitted to
OCRM.

In late November, more than 600 copies of a summary of the
draft assessments in newsletter format, entitled 'Maine Coastal
Futures,' were mailed to groups and individuals along the coast,
including editors of coastal newspapers, coastal land trusts,
chambers of commerce, rotaries, marine-related organizations,
coastal town officials, and state, local, and federal agencies.
This mailing announced the beginning of a formal 30-day public
review period extending from November 26, 1991 to December 28,
1991. It announced availability of detailed draft assessments for
public review, requested comments, and included a return
questionnaire.

A total of 26 responses were returned. Of these, 7 were from
coastal and municipal planners, 2 from town officials, 7 from
state agencies, 6 from private conservation and landowner rights.
groups, 2 from private individuals and 2 from Maine offices of
the USFWS.

Supplementing the request for comments in the newsletter,
draft assessment papers were reviewed and face-to-face
discussions were held with numerous staff in state agencies
(Departments of Marine Resources, Environmental Protection,
Conservation, Inland Fish and Wildlife, Economic and Community
Development, and Transportation) and members of nonprofit
interest groups (Maine Conservation Rights Institute (MECRI),
Maine Audubon Society, Maine Coast Heritage Trust, Vinalhaven
Land Trust, and the Constitutional Advancement, Literacy League
of Maine (CALL ME) and Natural Resources Council of Maine.
Additional comments were provided by the federal Office of Ocean
&.Coastal Resource Management (OCRM).

On December 10, 1991, the assessments were presented and
discussed in a meeting with the DECD's Office of Comprehensive
Planning and the regional Coastal Co-ordinators representing the
various coastal regional planning councils. The group indicated
the need for Coastal Program support for local comprehensive
planning efforts along the coast and agreed that adverse
cumulative impacts of development and the protection of coastal
wetlands were priority issue areas. They also identified a need
to develop island policies to address the unique pressures facing
island ecosystems and communities.

On December 13, 1991, the assessments were discussed by the
Marine Policy Committee of the Land and Water Resource Council,
which is charged with policy coordination regarding natural
resource issues among state agencies. The committee includes
representatives from state agencies with responsibilities related
to the marine environment and is chaired by the Commissioner of
the Department of Marine Resources. Since many of its members
were involved in the preparation of the draft assessments, there
was general agreement with the findings. The group expressed
special interest in ocean resource planning options in
particular, and offered to assist in drafting the Section 309
strategy.

Response to Comments

Most comments received through the public review process,
including those from OCRM, were incorporated into the final
assessments documents. The majority of respondents endorsed the
assessments and the options. Comments are reviewed below for each
issue area. The Maine Coastal Program response is in italics.

Cumulative Impact Of Development

Reviewers generally identified the cumulative impact of
development on the coastal environment as a priority issue, One
perceived as relating in some aspects to all the other issues.
The options: "to establish a program of comprehensive watershed
planning and protection....",,"to protect natural areas that are
sensitive to the impacts of growth and development," "to identify
areas in-the marine and estuarine environment that are priorities
for protection," and "to develop special area management plans"
were most cited as priority options.

The need to connect natural resource protection with
sustainable economic growth and prioritize uses of coastal
resources was mentioned by several reviewers. one reviewer noted
that while development is the source of many problems,
development can expand public access opportunities and sustain
important industries (fishing, shipping, tourism... ) which rely
on the natural resources of the coast.

The Maine Coastal Program agrees that these options are
priority needs, and supports the development of creative plans
and programs to sustain both ecological integrity and the human
use of marine and estuarine environments.

Many respondents cited the impacts of development on Maine's
shellfish industry. They'expressed concern that coastal water
pollution causes the closure of nearly 30 percent of Maine's
softshell clam flats and impacts local ec.-.)nomies dependent on
fisheries. Other comments focused on the need to fund water
quality monitoring programs, standardize water quality testing
methodologies and pollution prevention efforts. Most respondents
supported the assessment of impact fees on point and nonpoint
source dischargers of pollution.

The Maine Coastal Program recognizes the importance of
shellfish management, particularly as it relates to expanding
employmenbt opportunities at the local level. While shellfish
management (e.g. supporting shellfish ordinances and wardens, and
reseeding clam flats) is not an eligible use of Coastal Program
funding, the program does support interrelated activities. The
Partners in Monitoring Program and the Shore Stewards Trust Fund
overseen by the Coastal Program, for example, seek to facilitate
and fund volunteer water quality monitoring activities.

Cumulative impact guidelines and education of local planning
boards were mentioned as necessary to avoid negative cumulative
impacts resulting from permitting decisions at the local level.
Many reviewers mentioned the need to support local comprehensive
planning as a means to anticipate and prevent the cumulative
impacts of development.

The Maine Coastal Program supports local comprehensive
planning and agrees that local planning boards need additional
assistance in order to fairly and consistently include concern
for cumulative impacts in local permit review.

Coastal Hazards

Incorporat
ion of shoreline erosion data into shoreland
zoning regulations was considered by some reviewers to be a
priority option for enhancement.

The Maine Coastal Program agrees that shoreline erosion data
needs to be available for permitting decisions in order to
anticipate the cumulative impact of development, sea level rise,
and change in shoreline habitats.

Marine Debris

The option proposing a model marine debris recovery and
recycling project was supported by several reviewers.

The Maine Coastal Program does not recognize "marine diebris"
as a priority issue area for 309 funding at this time. Through
coordination of annual Cleanups and.Coastweek activities, the
Maine Coastal program will strive to reduce the impact of marine
debris by focusing and redirecting education efforts.

Public Access

Land acquisition and protection of visual access were
mer@tioned as important by a Waldoboro resident who wrote "It is
vital that we find ways to set aside areas of undeveloped or
lightly developed land... in order that in 100 years we still have
some green natural areas to look at. People need to see
wildness." The reviewer supported establishment of a voluntary
registry program for landowners to agree to limited public use of
private lands, as well as low-impact access sites.

The option "to identify areas and negotiate easements where
traditional access is threatened or cut-off by development" was
cited by many reviewers as a priority. Establishment of a real
estate transfer tax was suggested as a source of revenue for
public land acquisition by communities or the state. One reviewer
commented that protection of access for traditional activities
such as fishing and hunting should be a priority concern.

The Maine Coastal Program continues to be committed to
expanding public access opportunities to the coast, though other
issues currently have higher priority for limited Section 309
funds. Recent comprehensive planning efforts, supported by the

Maine Coastal Program, have laid the groundwork for
identification of access needs in coastal communities for funding
at a later date.

Respondents from MECRI and CALL ME indicated a concern that
the private property rights and rights to local self-government
of Maine's coastal citizens may be targeted for a "radical
taking" by the Maine Coastal Program, NOAA and other federal
agencies. one reviewer wrote: "You have neglected to incorporate
the supreme role of our government into any of your proposed
policies and that is to Protect the Rights of the Individual."
Others objected to the brevity of the 30-day comment period and
the portrayal of private property rights as problems.

The Maine Coastal Program recognizes the concerns of private
property owners regarding regulation of land development;
however, we believe that protection of natural resources through
regulation protects the collective interests of society, and any
regulatory or land acquisition programs will be conducted in full
accord with existing law. The 30-day review period was
established by federal rulemaking.

Siting of Energy and Goverrment Facilities

Several reviewers cited the need to develop formal
procedures for requiring alternatives to coastal locations of
proposed energy and federal facilities.

This issue area is not a priority area for funding unler the
309 Enhancement Grant Program at this time.

Ocean,Resource Planning

Public comments showed strong support for ocean resource
planning. The Planning Director of the Town of Eastport
identified ocean resource planning as the key coastal management
issue because: "Economic growth founded upon resource-based
development can ensure a stable foundation for Maine workers and
industry. New approaches to-the management of Maine's ocean
resources are needed to achieve the wisest use.of these assets.
*** A comprehensive plan which deals with the best use of marine
resources would act as a guide for various levels of (government)
which must make decisions concerning impact of development.
Comprehensive planning is not only critical for small
geographical units such as towns and cities. It is also of prime
importance for large regions such as the State of Maine or the
Gulf of Maine."

The Maine Coastal Program has supported and will continue to
support ocean resources planning with Section 306 rather than
limited Section 309 funding. Regional plannin g and the need for

coastal plans to include adjacent estuarine and marine areas also
are acknowledged, along with the need for locally-derived plans
that reflect regional and local differences.

The need to protect sensitive estuarine and marine habitats
was cited as a priority concern by many reviewers. A wildlife
biologist, noted that 11 ... Ocean Resource Planning must happen to
develop the "vision" for the Maine Coast ... and (to) address
inherent conflicts among and between (existing) individual
(coastal) policies ... it.

Reviewers supported the creation of a "coastal coordinating
committee" of state and federal agency staff to coordinate
strategies and policies, and development of a "multiple-use"
policy for marine and estuarine waters. The need to improve
inventory and mapping of marine resources was also cited as a
priority for action.

The Coastal Program is aware that Maine's coastal policies
contain potential conflicts, and intends to develop guidelines to
clarify legislative intent. The existing Marine Policy Committee
of the Land and Water Resource Council serves to coordinate state
management of marine resources. The Maine Coastal Program
supports the formation of a task force.to guide marine planning
efforts.

One reviewer urged a review of the present system of
classifying coastal waters and a rigorous application of
standards which call for "maintaining existing biological
structure and function." He also noted that commercial fishing
and aquaculture are significant activities within the scope of
coastal management, yet were not mentioned in the summaries. In
particular, he suggested evaluation of the "impacts of
aquaculture and certain fishing methods on coastal ecosystems"
and environmental impact assessments for net-pen aquaculture.

Since the standards for classification of estuarine and
marine waters are included within the core laws of the Maine
Coastal Program, changes to the classification would constitute a
"program change" and be eligible for 309 funding. The Maine
Coastal Program agrees that the present classification system
deserves review.

Commercial fishing and aquaculture activities were discussed
in the full assessment report on Ocean Resource Planning.- The
Maine Coastal Program funded an analysis of the environmental
impacts of netpen aquaculture, and the Gulf of Maine Program
recently published a report on "The Environmental Impacts of
Finfish Culture," which is available from the Maine Coastal
Program. The federal Environmental Protection Agency is preparing
a General Permit for finfish aquaculture which includes
environmental parameters for permit review.

Coastal Wetlands

Coastal wetland definitions and exemptions of certain small
freshwater wetlands from regulation were cited by many
respondents as priority concerns. The need to expand and
implement the significant habitat provisions of the Natural
Resource Protection Act was also cited as a priority option by
several respondents.

Many reviewers supported options that suggested convening of
an interagency group to identify wetland restoration priorities,
promotion of a coastal conservency, and improved protection of
wetlands owned by state agencies.

The U.S. Fish & Wildlife Service in Bangor, noted the need
to identify coastal wetlands with artificial restriction of
natural tidal flow. They suggested documenting the extent of
phragmites reed in coastal wetlands as an indication of stressed
areas and recommended restoration of marshlands behind the
tidegates on the Pleasant River in Addison.

The above comments have been incorporated into the
assessments.

A city planner from southern Maine commented that the most
important issue on the Maine coast was the difficulty in
obtaining permits for harbor and channel dredging.

Dredging is an important coastal issue which has been
addressed in a DredcTing Management Strategy prepared by the
Coastal Program and recommended by the Marine Policy Committee
for adoption by the Maine Land and Water Resources Council,

Special Area Management Planning

Several reviewers commented on the need to focus resources
on selected special areas of state significance and to increase
involvement of local and state organizations working with state
agencies in conservation efforts.

oi@ Maine Coast Heritage Trust and other reviewers supported
0 special area management plans along the coast that promote
V sustainable use and protection of coastal resources. Many
respondents suggested that special area management planning in
some form would be an effective tool for managing the cumulative
impacts of development.

Reviewers at the Land Use Regulatory Commission (LURC) noted
that 305 islands are within LURC jurisdiction and called for the
development of 'island policies' which would provide consistency
and direction to the management of Maine's coastal islands.

The Maine Coastal Program supports the concept of special
area management planning as a tool to manage the cumulative
impact of development in certain areas. We believe that special
area management planning efforts in Maine must be linked to
ongoinglocal comprehensive planning efforts.

Maine islands are special features of our coast subject to
unique problems because of geography. At this time, island areas
are subject to the same regulation and protection as mainland
areas. The Section 309 Enhancement Grants Program may provide an
opportunity to improve management of these areas of biological
and cultural significance.

General Comments

Many reviewers mentioned a need to improve enforcement of
existing environmental regulations. Several reviewers suggested
flexible, non-confrontational approaches that focus on education
and prevention rather than reliance on legal action.

One reviewer wrote that too many agencies are involved in
coastal decisions. Several reviewers noted the need for improved
coordination between the Maine Coastal Program, the Department of
Environmental Protection and The Department of Marine Resources
regarding water quality information, community education, and
other coastal management activities.

The Maine Coastal Program agrees that enforcement of
existing regulations is a priority. We anticipate continuing to
use Section 306 funding for the Code Enforcement officer Training
Program in the DECD to improve enforcement at the local level,
and for State-level staff in the Dept. of Environmental
Protection and Dept. of Marine Resources.

The Maine Coastal Program is a networked program composed of
several state agencies concerned with coastal management. This
decentralized approach has drawbacks and benefits. The Marine
Policy Committee of the Land and Water Resource Council is an
important new mechanism to improve coordination between agencies.

Finally, one last reviewer comment deserves quoting

"We need a true commitment to improving our coastal
environment and a willingness to bear the cost before
anything will change. We will know that commitment exists
when our government is willing to raise tax dollars to
support these efforts, and when our people are willing to
give up small measures of personal freedom for the greater
good. Until that time, all of your studies, plans, and
guidelines will amount to no more than a sand castle at the
low tide line."

SUMMARY OF PRIORITY NEEDS AND PROGRAM CHANGES

Priority Issue: CUMULATIVE IMPACTS OF DEVELOPMENT

Indirect and secondary effects of land and water activities
on the health of the coastal ecosystem are a priority concern of
coastal residents, interest groups, and government agencies with
responsibility in the coastal region. Such activities are
necessary for the enjoyment of the coast and for Maine's economic
well-being, but they need to be conducted in a way that does not
jeopardize the resources on which they depend.

The greatest threats are losses of function of tidal
wetlands, estuaries and marine waters, such as loss of habitat,
loss of flood storage, loss of protection which wetlands provide
from erosion, loss of fisheries, etc. Pollution and other
cumulative effects of shoreland and marine development are the
causes of such losses.

GOAL

To identify and protect sensitive natural coastal areas and
resources from adverse cumulative impacts of growth and
development, using an eco-system approach, and by supporting
state, regional and local planning, management, regulatory
activities, public education and other means.

OBJECTIVE

Identify and protect natural coastal areas that are sensitive to
the impacts of growth and development.

Priority Needs: Identify areas in marine and estuarine
environments that are subject to rapid growth and priorities
for protection; assess anticipated impacts; develop policies
and land use controls for coastal watersheds, estuaries,
embayments and islands of concern (AOC).

Program Changes: Amend NRPA to expand or alter significant
habitat provisions; incorporate additional policies into
MCP; designate Areas of Concern; amend State model shoreland
zoning ordinance to reflect shoreline erosion rates.

Potential Projects: Study economic value of natural
resources in AOC's.

Develop alternative strategies for land protection by
private landowners.

Accelerate GIS mapping of marine areas.

Develop an estuarine/marine habitat classification system.

Develop maps/criteria for NRPA habitat provisions

Determine erosion rates of shoreline and tie rates with
shoreland zoning setbacks.

Update state inventories of fresh and tidal wetlands in
coastal watersheds; map and classify estuarine and marine
wetland habitats; amend existing rules or legislation to
improve protection, enhance enforcement of existing laws.

Convene an interagency group to identify wetland restoration
priorities.

Develop model wet'land ordinances for local municipalities.

Network existing environmental enforcement personnel in
state agencies and at the local level to achieve more
efficient enforcement of environmental laws.

Develop guidelines for dredging and dredged material
disposal in coastal waters.

Develop guidelines for evaluating the ecological function of
wetland types.

Evaluate the need to increase protection of unregulated (by
the state) wetlands and forested wetlands.

Develop a wetland protection plan for wetlands owned by
state agencies.

OBJECTIVE*

To reduce and ultimately eliminate harm from point and nonpoint
sources of pollution to Maine coastal waters, including
pathogens, toxic contaminants, and sediment.

Priority Needs: Through a cooperative intergovernmental
watershed planning process, target priority estuaries and
embayments; develop education and prevention programs
including volunteer water quality monitoring efforts;
develop or enhance state programs or regulations which
control NPS's of pollution. Establish baseline information
on the pollutant levels in key estuaries and embayments.

Program Changes: Possible changes to state plumbing code;
NPS priority watershed plans; siting standards; BMPs for
forestry operations in coastal basins; Coastal Monitoring
Program.

Potential Projects: Nonpoint source inventory & plans for
priority estuaries & embayments.

Study of effectiveness of current subsurface sewage disposal
standards in coastal areas. Study should include evaluation
of current procedures, criteria for systems, setbacks,
identification of sensitive areas where more stringent
regulations should apply ... etc.

Development of marina siting standards to prevent
restriction in use of commercial and recreational shellfish
beds.

Study need for "no discharge" or "no anchorage" areas.

Study effects of forest practices on estuaries.

Formalize cooperative agreement to share information on
sources of pollution and pollutants of concern between DMR,
DHS, DEP, and municipalities.

Study adoption of uniform NPDES permit renewal dates by
watershed unit.

OBJECTIVE

To strengthen watershed, embayment and estuarine planning and
management efforts, including pollutant reduction and prevention,
habitat protection, harbor management, water use and supply, and
public education efforts.

Pri.ority Needs: Develop new local growth management
legislation, provide small matching grants to towns to
implement existing plans and develop plans and ordinances
with a new watershed focus.

Program Changes: Add revised growth management legislation
to the MCP. Adopt regional SAMPs to integrate local plans
and ordinances.

Potential Projects: Establish a schedule of fees to be paid
by point and nonpoint dischargers into bays, estuaries, and
the ocean for use in watershed planning, water quality
monitoring, and remediation and prevention projects.

OBJECTIVE

To improve consideration during environmental permitting, and in
land acquisition and infrastructure programs, of the cumulative
impacts of development in coastal areas, especially with regards
to habitat, water, air, and scenic quality.

Priority Needs: Develop guidelines for use in local and
state permitting review. Amend relevant legislation to
include clear definitions of cumulative impact.

Program Changes: Amendments to NRPA, mandatory shoreland
zoning guidelines, cumulative impact guidelines for planning
boards and state agencies.

Potential Projects: Research how other states have included
consideration of.cumulative impacts in legislation. Develop
proposed changes to Maine laws.

Develop guidelines for local planning boards (booklet),
guidelines for state permits.

Complete a coastal scenic assessment to implement scenic
provisions of NRPA.

309intro.rpt

Section 309 Assessment

1. OCEAN RESOURCES PLANNING

Advisory Committee: Marine Policy Committee

Agency Contacts:

William J. Brennan, Commissioner, Department of Marine
Resources
Rob Elder, Department of Transportation
Anne Hayden, State Planning Office
Dr. Joseph Kelley, Maine Geological Survey/DOC
Steve Oliveri, Bureau of Public Lands/DOC
Fran Rudoff, Department of Economic and Community
Development
John Sowles, Department of Environmental Protection
Steve Timpano, Department of Inland Fisheries and
Wildlife

Interest Group Contacts:

Friends of Casco Bay
Island Institute
Maine Audubon Society
Maine Fishermen's Cooperative Association
Maine Harbor Masters Association
Maine Lobstermen's Association
Maine Marine Trades Association
Maine Pilot's Association
Maine Sardine Council
Marine Law Institute

Ocean Resources Planning

CONTENTS

1.0 SUMMARY

1.1 Maine's Key Coastal Management Policies

1.2 Federal CZMA Legislative Objective

1.3 Federal CZMA Assessment Characterization

1.31 Scope & Definitions
1.32 Available Information/Studies
1.33 Inventory of Ocean Resources and Uses

1.4 CZMA Programmatic Objectives

1.41 Existing Laws, Regulations, Programs
1.42 Assessment of Problems, Issues and Effectiveness
of Current Laws and Programs

a. No comprehensive state policy for use of
state coastal waters
b. No comprehensive planning for the use of
Maine's coastal waters
c. Lack of adequate criteria for resolving
conflicts among competing uses-
d. Lack of a marine habitat protection program
e. Inadequate state agency coordination
f. Lack of adequate information for decision
making

1.5 Ocean Resources Planning

1.51 Options for Improvement

1.6 Available Information/Studies

[jr.seal 1/15/92

1.0 SUMMARY

Commercial fishing, shipping, recreational boating, whale -
watching, aquaculture, and waste disposal are just a few uses of
Maine's coastal waters. These waters support a rich diversity of
marine life; some of the most biologically productive marine
environments in the world are found in the Gulf of Maine. It is
becoming increasingly difficult both to accommodate multiple uses
and protect the marine environment.

As use of marine resources increases and problems become
more complex, coordination among the numerous state and federal
agencies becomes more important. Declines in fishery landings and
extensive shellfish closures suggest that intensifying use of the
state's coastal waters is threatening its productivity and.
environmental health. New approaches to the management of
Maine's marine resources are needed.

Accomplishments

An interagency Marine Policy Committee'of the Land and Water
Resource Council has been established.

The international Gulf of Maine Council on the Marine
Environment was established in 1989; the council recently
adopted a long-term Gulf of Maine Action Plan and
Environmental Quality Monitoring Plan.

A revised Dredge Management Strategy has been developed by
the Maine Coastal Program for action by the state.

The Casco Bay Project, a National Estuary Program, was
established in Casco Bay and is developing a regional
management plan for the area.

Problems

There are signs of degradation of the marine environment.
For example, about 30 percent of the state's shellfish beds
are closed or restricted for harvesting due to bacterial
contamination.

No comprehensive state policy exists for the use of state
coastal waters. Several agencies are involved in decisions
which affect the marine environment, yet they pursue
differing and sometimes conflicting mandates.

No comprehensive planning process exists for the use of
Maine's coastal waters.

Competition among marine-related uses is increasing, yet no
mechanism exists to resolve these conflicts. Competition
between water and non-water dependent uses is also on the
rise.

The state has no marine habitat protection program.

Coordination between state agencies is inadequate.

Adequate natural resource information for decision making
does not exist.

Maine's Key Coastal Manacfement Policies (38 MRSA 1801)

MARINE RESOURCE MANAGEMENT. Manage the marine
environment and its related resources to preserve and
improve the ecological integrity and diversity of
marine communities and habitats, to expand our under-
standing of the Gulf of Maine and coastal waters and to
enhance the economic value of the State's renewable
marine resources.

WATER QUALITY. Restore and maintain the quality
of our fresh, marine and estuarine waters to allow for
the broadest possible diversity of public and private
uses.

PORT AND HARBOR DEVELOPMENT. Promote the mainte-
nance, development and revitalization of the State's
ports and harbors for fishing, transportation and
recreation.

SHORELINE MANAGEMENT & ACCESS. Support shoreline
management that gives preference to water-dependent
uses over other uses, that promotes public access to
the shoreline and that considers the cumulative effects
of development.

1.2 CZMA Lecrislative Oblective

� 309(a)(7) P2anning for the use of ocean resources.'

1.3 Federal CZMA Assessment Characterization

Characterize current & prospective ocean resources & uses of
state concern, & specify existing & future use conflicts.

* Xnventoxy ocean resources that are important to the
state.

Zdantify current and probable near-tezza and long-term
ocean uses. Descx1be the intensity of those uses and
the extent and severity of conflicts (both current and
anticipated) among the various activities.)

1.31 Scope & Definitions

Maine's marine waters support a tremendous diversity of
marine life and economic activity. Some locations contain the
highest diversity of marine life reported in the coastal waters
of the United States. These waters are home to at least 1600
different type@s of bottom-dwelling organisms, about 100 types of
birds, 73 different types of fish and 26 different kinds of
whalest porpoises and seals . 2This high diversity of sea life is
supported by a variety of marine and estuarine habitat types.
Salt marshes, eel grass beds, muddy and sandy sediments, gravel
beds, rocky substrates, sheltered coves, high energy environments
and variable levels of salinity and temperature are all present
in Maine's coastal waters.

Maine's coastal waters and the Gulf of Maine traditionally
have supported a wide variety of uses, most notably fishing and
commerce. Over 5,000 years ago prehistoric peoples fished these
waters for cod and haddock. The first Europeans, who settled
along the coast in the 1600s, were drawn to this area because'of
the plentiful stocks of fish. More recently, foreign fishermen
from many nations fished those Gulf stocks, which eventually
caused a major decline in the region's fisheries. Shipping and
ship building have also played major roles in the state's econo-
my. Today, in addition to those traditional uses of the sea,
Maine's marine waters also support relatively newer uses, such as
recreational boating, aquaculture and waste disposal.

' Italicized text is excerpted from federal guidance for Section 309 assessments.

2U.S . Fish and Wildlife Service, An Ecological Characterization of Coastal Maine Volume
Two, 1980.

Ocean resources planning involves the policy, planning, and
regulation of all uses of Maine's coastal and marine waters and
their interaction. Management of individual uses is not as much
of a concern as is the management of all the uses in a comprehen-
sive and integrated manner. Issues of concern in Maine include
dredging and dredge spoil disposal, net-pen aquaculture, sub-
merged lands management, oil transportation, mobile and fixed
gear fishing, and habitat protection. Oil and gas development on
Georges Bank and sand and gravel mining are issues of potential
future interest to the state.

1.32 Available Information/Studies

Numerous studies have been conducted on various ocean
resources in Maine. The topics covered include oil spill preVen-
tion and response, net-pen aquaculture, marine policy, marine
research, dredging management, and marine water quality. These
studies have covered these issues in fairly comprehensive detail
and further assessment work is not needed. However, implementa-
tion of the numerous recommendations contained within the reports
is necessary. These recommendations will be important components
of the ocean resources planning strategy. Issue areas that are
in need of further assessment include identification and protec-
tion of critical marine habitats and marine wildlife.

1.33 Inventory of Ocean Resources and Uses

A. Aquaculture

To supplement the harvesting of marine resources from
natural populations, aquaculture, or the "farming" of the sea,
has become common practice worldwide. Maine's coastal waters
provide a prime environment for the culture of fish and shellfish
because of the numerous protected coves and bays, high flushing
rates, relatively clean waters, and proximity to markets.

Maine's aquaculture industry, virtually non-existent 20
years ago, is emerging as a significant and growing use of the
state's coastal waters. Both finfish and'shellfish are produced
in coastal waters which are leased by the state to private
operators. Species under cultivation include mussels, clams,
oysters, salmon, and trout. Shellfish are generally produced by
bottom culture and salmon are raised in floating net pens.

Growth of the industry has increased rapidly throughout the
1980s, with continued rapid growth projected for the future.
Currently there are 86 fish and shellfish leases totalling over

3
See, State Planning Office, An Aquaculture Development Strategy for the State of Maine.
(State Planning Office, Augusta, ME, 1990).

1,100 acres of coastal waters. Leases are located along the
entire Maine coast with 45 percent located east of Bar Harbor.
Other clusters of leases are located along the Blue Hill peninsu-
la, near Damariscotta and Bristol, and in southern Maine from
Freeport to York and Kittery.

The number of sites leased for salmon farms in Maine's
coastal waters has increased from zero to 41 in just four years.
Currently, salmon farms are exclusively located east of Penobscot
Bay, with the majority located in Cobscook Bay, because of favor-
able water temperatures. With the advent of new technology,
however, the possibility exists that salmon aquaculture could
develop in the mid- and southern coast areas as well.

The "Maine Aquaculture Strategy" (SPO,1990) projected
meteoric growth in the finfish aquaculture industry over the next
decade. Demand for aquaculture leases will continue as wild
stocks decline. The areas with water quality suitable for aqua-
culture activities and supportive of wild species will depend on
the ability of the state to control and monitor bacterial and
other types of pollution in nearshore waters.

B. Marine Transportation

Overall, commercial vessel traffic along the Maine coast has
increased slightly over the past 15 years and it appears that
this trend will continue into the future. Maine's major
commercial ports include Portland, Searsport/Bucksport, and
Eastport. During the past ten years, the amount of dry cargo
(primarily lumber) transported through Maine ports has nearly
tripled to about one million tons. Oil, bulk goods, wood
products, frozen foods,-passengers, and tourists-all move through
Maine's coastal waters by ship. Passenger ships serve as
important links to Maine's many offshore islands, to Canada and
to a growing tourist trade.

In 1988, 51 percent of Maine sea ca rgo passed through
Searsport, while 35 percent was handled by Portland, 13 percent
by Eastport and one percent by Winterport. In recent years there
has been a steady increase in the amount of oil flowing through
the state's ports. Since 1986, oil shipments have increased 64
percent. Indications are that this trend will continue as demand
increases in Canada and Maine, as production decreases in western
Canada, and as oil fields are developed offshore Newfoundland,
Can. The Portland Pipeline, which transports the vast majority
of oil brought into Portland to Montreal, expects a doubling of
oil traffic over the next two to five years.' Jet fuel is
transported via pipeline in Harpswell to the Brunswick Naval Air

'Ralph Wink, Poriland Pipeline, personal communication, March 15, 1990.

Station and via pipeline in Searsport to Loring Air Force Base.
Additional traffic off the Maine coast is bound for Portsmouth,
N.H. and St. John, New Brunswick.

Maine ports average about 65 cruise ship arrivals per year
with 250 to 1200 passengers on each ship (and with crew sizes
ranging from 75 to 500). Maine ports can expect to handle over
90 ship calls in the summer of 1991. Portland, Roothbay Harbor,
camdo@n,, and Bar Harbor are miA'Qr de.5tinatiQnz fQz- crui5e 5hip5.

Maine's coastal waters are also used by ferries serving
Canada and Maine's numerous offshore islands. More than 60 boat
cruises, excursions and charters also operate along the coast.
Ferry traffic serves commuters, tourists, and provides goods to
island communities. Ferry ridership has steadily increased
throughout the last decade largely due to tourism, which results
in a seasonal pattern of ridership with peak travel occurring
from late spring to early fall and then falling off to relatively
low levels throughout the remainder of the year. Islands served
by ferries include Vinalhaven, North Haven, Swan's Island,
Islesboro, Long Island, Monhegan, and Matinicus in the Penobscot
Bay/mid-coast region and Little Diamond, Great Diamond, Long
Island, Peaks, Cliff, Cousins, and Great Chebeague Islands in
Casco Bay. In addition, international ferries provide services
from Portland and Bar Harbor to Yarmouth, Nova Scotia, and from
Eastport to Deer and Campobello Islands in New Brunswick.

C. Marine Recreation

Maine's coastal waters have seen tremendous growth in recre-
ational activity including pleasure boating, tourism, recreation-
al fishing, whale watching, sea kayaking and other activities.
The number of boats registered in the state that use Maine's
coastal waters has nearly tripled from about 21,000 in 1970 to
56,000 in 1989. An additional 2,000 boats are documented with
the U.S. Coast Guard and may not necessarily be registered with
the state. These figures, however, do not include a possibly
substantial number of boats which.use Maine's coastal waters but
are registered in other states.

Another indication of the level of recreational boating
activity is the number of moorings and waiting lists for moorings
in Maine's harbors. There are about 11,000 moorings in the
state's coastal waters according to a survey conducted in 1989 by
the Department of Economic and Community Development.5 An addi-
tional 1,110 people are on waiting lists for moorings in various

5This information was collected from 78 harbors. No information was received for 50 coastal
communities, of which 18 have significant harbors. see, Harbor Ordinance and Mooring Survey,
September 11, 1989, Department of Economic and Community Development.

coastal towns. In addition, there are about 125 marinas in the
state with several thousand slips. Marinas in Portland and South
Portland contain roughly 1,500 slips.'

Whale-watching and other wildlife sightseeing cruises (e.g.
for seabirds and seals) off the Maine coast are other activities
that have grown substantially in the past ten years. On Mt.
Desert Island, for example, the number of people using whale-
watching services (from Bar Harbor, Northeast Harbor and Bass
Harbor) jumped from about 30 people per day in 1985 to about 600
people per day at the height of the season in 1990.7 Whale-
watching boats leave principally from Kennebunkport, Boothbay
Harbor, and Bar Harbor, while other coastal and marine wildlife
sightseeing trips leave from numerous spots on the coast, includ-
ing Portland, Camden, New Harbor and other towns. About 11
companies now ferry tourists and researchers to sites offshore in
search of humpback and fin whales.

Recreational fishing is another popular use of Maine's
coastal waters. Of the numerous species sought after by
recreational fishermen, the most popular are bluefish, mackerel,
groundfish, and tuna. Accurate figures on the number of recre-
ational fishermen using Maine's coastal waters are not available,
however, since the state does not require a recreational saltwa-
ter fishing license. The National Marine Fisheries Service
estimates a total of about 267,000 recreational fishermen used
8
Maine's coastal waters in 1987.

D. Waste Disposal

Industry, municipalities, vessels, and dredging of the
state's ports and harbors produce wastes, some of which are
disposed of in the marine environment. In addition, runoff from
the state's cities and farms also contributes pollution to the
,coastal waters.

Dredge Spoil Disposal--- Ocean disposal of sediments
dredged from channels, harbors and other marine areas, may be
contaminated with pollutants such as PAHs, PCBs, and metals.
Dredging activities disperses the pollutants into estuarine or
ocean sites potentially causing ecological problems in those

'Maine Department of Environmental Protection, 1989. Agenda for Action: Casco Bay
(Department of Environmental Protection, Augusta, ME).

"Robert Bowman, College of the Atlantic, personal communication, November 19, 1990.
'U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National'
Marine Fisheries Service, September, 1988. Marine Recreational Fishery Statistics Survey.,
Atlantic and Gulf Coasts, 1987 (National Maxine Fisheries Service: Washington, DC).

areas. The natural hydrology of estuarine areas may also be
modified by the removal of bottom sediments.

Decisions on the location of disposal sites for dredged
material are based principally on economic considerations, such
as the cost of hauling the material to the site and, in the case
of a land-based site, any fees required for its use. In Maine's
case, the vast majority of dredged material has been disposed of
in estuarine or marine waters. Given scarce land areas for
disposal of dredged material and increased pressure to create
more marinas and to increase activities in the state's commercial
ports, the need for ocean disposal will likely increase.

Between 1950 and 1989 the U.S. Army Corps of Engineers
conducted 98 dredging projects in Maine, removing some 4.5
million cubic yards of dredged material (SPO,1991). Currently,
79 coastal towns have had some degree of dredging by the Army
Corps and numerous other coastal towns have private dredging
projects. Just under 600,000 cubic yards, or 13 percent of the
material dredged between 1950 and 1989, were dredged between 1982
and 1989. Disposal of the material occurred as follows:

Ocean sites 41%
Estuarine sites 36%
Upland sites 15%
Unidentified 8%

Dredged material is disposed of either in permanent, EPA
approved-ocean disposal sites, or in ad'hoc Corps nearshore
disposal sites if the dredging project is located too far away
from an EPA site. Officially designated ocean disposal sites are
located off Cape Arundel in southern Maine, Portland, and
Rockland. The Cape Arundel site, located several miles offshore
the southern Maine coast, is used by the Port of Portsmouth and
several small harbors in southern Maine. The Portland site,
which receives dredged material from Portland harbor, is located
just outside western Casco Bay, about seven miles offshore at a
depth of about 150 feet. The Rockland site is located offshore
Rockland and serves Rockland harbor and several other small
harbors in Penobscot Bay. Numerous other sites along the coast
are used on a project-by-project basis.

Point-Sou.rces - Nearly 60 municipal sewage treatment plants
discharge directly into marine or estuarine waters. Thirteen
plants which discharge into estuarine and marine waters only
provide primary treatment. Maine Yankee Atomic Power Plant and
fossil fuel-powered electrical generating plants use tidal waters
to cool turbines. Almost 3000 residential overboard discharge
licensees exist along the Maine coast. In 1987, the Maine
Legislature prohibited the construction and use of new overboard
discharge systems and required the gradual phaseout of most of
the existing systems. Forty-five industries are licensed to

discharge wastewater to Maine's coastal watersheds. These indus-
tries include pulp and paper mills, tanneries, metal finishing
operations, textile manufacturing, and chemical companies.

As population increases along the coast, greater volumes of
wastewater will be discharged to tidal waters unless alternative
systems are developed. With increased volume of automobile
traffic and road and residential construction activities, in-
creased volumes of surface waters will run-off to near-shore
waters as well as increased loadings of pollutants associated
with development and population growth.

E. Commercial Fishing

The Gulf of Maine supports a significant commercial fishery
for finfish and shellfish. In 1990, the state's landings were
170 million pounds, consisting of over 40 species of fish, shell-
fish, and other sea creatures, with a landed value of about $130
million. Maine's commercial catch is dominated by Atlantic
herring, lobsters, groundfish, and menhaden by weight and lob-
sters, clams, scallops, and groundfish by landed value. Lobsters
are economically the most important fishery in the state.

About 14,000 licenses were issued to commercial fishermen in
the state of Maine in 1990. The number of licenses issued
increased dramatically from 1950 to 1974, from just over 8,000 to
just under 19,000 -- a 138 percent increase. The number of
licenses has been declining steadily since that time, however,
with a slight increase the last two years. Despite fewer li-
censed fishermen, greater effort is being expended to catch fewer-
fish. For example, there were 6,660 licensed lobster harvesters
in 1960. Their numbers climbed to a peak of 10,500 in 1974 then
decreased to 6,600 in 1990. Despite this trend, the number of
lobster traps deployed in Maine's coastal waters has actually
increased from roughly 700,000 in 1960 to more than two million
in* 1989.9 while effort has increased substantially, the land-
ings have remained relatively constant.

In the last decade, overall fish and shellfish landings
fluctuated greatly and are currently in a.downward trend. Total
landings of both fish and shellfish in Maine have declined by
over 44 percent since 1980 -- from 244 million pounds in 1980 to
169 million pounds in 1990. Several species, such as lobster,
continue to bring in strong landings. Landings of haddock, ocean
perch (redfish) and flounder have experienced the greatest

'Kenneth Sherman, Edward B. Cohen, Richard W. Langton, 1989. "The Northeast
Continental Shelf. An Ecosystem at Risk," in The Gulf of Maine: Sustaining Our Common
Heritage Conference Proceedings, ed., by Victor Konrad, et. al (Augusta: Maine State Planning
Office). pg. 129.

decline. Total nominal landed value, on the other, hand has
grown steadily from a 1980 value of $108 million to a 1990 value
of $129 million. Discounting for inflation, however, the total
value-has actually decreased by 24 per cent.

Two political events have profoundly affected Maine's
commercial fishing industry. The first was the passage of the
Magnuson Fishery Conservation and Management Act, which granted
the United States jurisdiction over fishing within 200 miles of
its shores. This act effectively eliminated foreign fishing
fleets from the Gulf of Maine and spurred a tremendous expansion
of the commercial offshore fleet -- as evidenced by the number of
commercial fishing licenses and the amount of fish landed in
Maine in the mid- to late- seventies. The second event was the
1984 World Court decision on the U.S./Canadian maritime boundary.
This boundary effectively cut off valuable fishing grounds to
Maine fishermen who had traditionally used these areas and has
contributed to the decrease in landings in several species of
finfish.

F. Energy and Mineral Resources

Over the years there have been a number of proposals to
explore for oil and gas in the Gulf of Maine/Georges Bank region.
However, currently there is no active exploration for energy or
mineral resources in Maine's coastal waters or the broader Gulf
of Maine. In the late 1960s, the Maine Mining Bureau (predeces-
sor to the Maine Geological Survey) granted oil and gas explora-
tion rights off the Maine coast to King Resources." The compa-
ny was granted rights to a 3.33 million-acre area running roughly
from Kennebunkport to Bar Harbor. At the closest point, the area
was 11 miles off the coast, and 80 miles at its furthest. The
area proved not to be promising for development. In 1981 and
1982, five American companies drilled eight wells on Georges
Bank, but discovered no economically exploitable quantities of
oil or gas. Industry interest in the region persists, but
environmental concerns have indefinitely delayed any prospects
for drilling on Georges Bank.

Lease sale cancellations by the Department of the Interior
exclude the Georges Bank region from lease activities from 1992-
1997. The Department of the Interior announced that no lease sale
will be held until after the year 2000 and "then only if studies
show that the development is warranted because of resource

"Resources from the Sea and Federal Limitations on State Control: Maine Law Affecting
Marine Resources, Vol. Four. Report carried out under the joint sponsorship of. The School of
Law of the University of Maine and the National Science Foundation, Office of Sea Grant
Programs, 1970.

potential and is environmentally safe.0111

In prior policy statements, the state of Maine has
recommended that the Gulf of Maine not be considered for oil and
gas development and that only the most promising areas on Georges
Bank should be offered for lease. The state has advocated a
cooperative arrangement between Canada and the U.S. to address
joint planning and management of oil and gas resources on Georges
12
Bank.

Minerals other than oil and gas are of potential future
interest in the Gulf of Maine. An intertidal mine located in
Harborside on Cape Rosier in Penobscot Bay operated for a'number
of years in the late 1960s and 1970s and ceased production in
1977. Copper, lead, and zinc were taken from this mine. In the
future, interest may turn to the large quantities of sand and
gravel that lie on the seabed of the Gulf of Maine. The economic
feasibility of developing these resources, however, has not been
examined. Other than the Harborside mine, no mining has occurred
directly in the state's coastal waters but it is possible it will
become economically feasible to exploit these resources at some
future time.
Sand from dredging opera@ions has been used in beach renour-
ishment projects in southern Maine. Although removal of sand and
aggregate from glacial deposits is a major activity on uplands in
coastal counties, no operations have been proposed to commercial-
ly remove the resources from submerged or intertidal lands,
.except as a by-product of dredging projects to improve navigation
channels or harbors.

A potential future use of tidal waters is for energy produc-
tion either by large or small-scale tidal generators, or thermal
generators that convert the difference between surface and bottom
water temperatures into electrical current.

G. Submerged Land Activity

Estuarine and marine intertidal and subtidal lands are used
for the harvest of shellfish and the placement of fishing and
aquaculture gear, moorings, docks, and wharves near shore or
along the shoreline. About 700 leases and easements are in place
on Maine's submerged lands. This activity has been increasing

"The White House, Office of the Press Secretary, Fact Sheet: Presidential Decisions
Concerning Oil and Gas DeveloDment on the Outer Continental Shelf, June 26, 1990.

"Letter from Governor John R. McKernan, Jr. to Secretary of Interior Manuel Lujan, Jr. on
the Department of the Interior's Draft Proposed Comprehensive Outer Continental Shelf Natural
Gas and Oil Resource Management Program for 1992-1997.

sharply since the submerged lands leasing program was first
established in 1975. In the last ten years, the number of leases
has increased 500 percent.

Thousands of bushels of shellfish (primarily mussels, ocean
quahogs, and scallops) are dragged from bottom sediments by
commercial fishermen each season. While dragging and digging
activities are transitory disturbances to ocean lands, the
construction of tidal impoundments (to hold lobsters and in years
past, to power saw mills), seawalls and placement of riprap are
examples of permanent alterations or modifications of intertidal
and subtidal lands common to the coast.

Incremental development of submerged and intertidal lands
with docks, piers, and other localized alterations will continue,
especially as the demand and value of shoreland rises. As
population increases along the Maine coast, use of the marine and
estuarine water resources will likely increase. Denser settlement
will require residential wastewater collection and treatment in
sewage plant rather than in-ground disposal. Surveys of mooring
fields and marina developments in Maine harbors over the past
f@ive years indicate an increase in recreational boating and
demand for shoreside services associated with the recreational
boating industry.

H. Protected Marine Species

While clearly not a "use" in the same sense as those de-
scribed above, several species of marine wildlife are afforded
special protection by state and federal law and thus affect the
manner in which other uses may operate. These species include
marine mammals, endangered and threatened species of seabirds and
shorebirds and other coastal wildlife. Seabirds, shorebirds and
marine mammals dominate the list of protected coastal and marine
wildlife. This may be due more to the lack of information on
other marine organisms than to existence of other endangered or
threatened species.

1.4 Federal CZMA Programmatic Oblective I -- Regulatory,
Planning, and Intragovernmental Coordination

Develop 6 enhance regulatory, planning & intra-governmental
@oordinatlon mechanisms to provide meaningful state participation
in ocean resource management & decision-malcing processes.

Analyze existing laws, regulations, and programs
affecting the management of ocean resources.

* Develop or enhance mechanisms to ensure full state
participation in existing planning and management
programs, including coordination with federal agencies.

1.41 Existincr Laws, Regulati ons and Programs

a. Scope

Numerous laws have been passed at the federal, state, and
local levels which affect the use of ocean resources. Relevant
federal laws include the Coastal Zone Management Act, Marine
Mammal Protection Act, Fisheries Conservation and Management Act,
Marine Protection, Research and Sanctuaries Act, National Envi-
ronmental Policy Act, Clean Water Act, Port and Tanker Safety
Act, Oil Pollution Act, Act to Prevent Pollution from Ships,
Outer Continental Shelf Lands Act, and others. This section will
discuss the major state laws that affect activities in Maine's
.marine waters and protect its habitat.

b. Malor State Laws

The major state laws that affect the use of ocean r esources
include:

Natural Resource Protection Act (38 MRSA 480 A-S, DEP Chs.
310, 343-345, 355). The act regulates all construction, filling,
or draining activities within or adjacent to coastal wetlands and
"protected natural resource" areas (e.g. sand dune systems, and
"significant wildlife habitats" such as habitats for endangered
species, shorebird nesting, and critical spawning and nursery
areas for Atlantic sea-run salmon). The term "coastal wetland"
is defined to include all intertidal and subtidal lands. As
such, the law covers essentially any development activity on the
state's submerged lands. Provisions that are of particular
relevance to "ocean resources" are: (i) a prohibition on activi-
ties that would cause unreasonable harm to significant wildlife
habitat and estuarine and marine fisheries; (ii) a requirement
that the proposed activity cannot unreasonably interfere with
existing uses including navigational uses; and (iii) requirements
that call for dredge spoil disposal applicants to ensure that the
transportation of dredge spoils minimizes adverse impacts on the
fishing industry, and that the dredge spoils are tested within
one year before submitting an application for disposal.

Submerged Land Leasing law (12 MRSA 558-573) - The law
grants the Department of Conservation's Bureau of Public Lands
authority to lease submerged lands for dredging, filling, and the*
erection of permanent structures (such as bridges, causeways,
marinas, wharves, and pilings). Leases on submerged lands must
not unreasonably interfere with navigation, fishing, or other
existing marine uses, diminish the availability of commercial
fishing services and facilities, or the ingress and egress of
riparian owners.

Aquaculture Leasing Act (12 MRSA 6072-6074, DMR Ch. 2) This
act gives the Department of Marine Resources authority to lease

the submerged lands and water column for the culturing of marine
organisms. A separate leasing system is established from that of
the BPL. DMR may issue 10-year leases for five acre tracts, up
to 100 acres per site and 150 acres per applicant. The act
provides for extensive environmental controls of aquaculture
sites.

Marine Resources Law & Regulations (12 MRSA Chap. 601-627)
The state's Marine Resource laws give the Department of Marine
Resources authority to regulate the harvesting of any marine
organism for commercial or recreational purposes. The law gives
DMR the authority to regulate the taking of marine organisms by:
time; method; number; weight; length; or location. The depart-
ment has the power to close contaminated shellfish beds.

Mining on State Lands (12 MRSA 541-550) This law gives the
Maine Geological Survey authority to issue exploration permits
and leases for exploration and extraction of minerals other than
sand and gravel on state lands, including submerged lands. Bonds
must be posted to ensure the reclamation of mined areas. Leases
for sand and gravel mining would be granted by the Bureau of
Public Lands. The Mining on State Lands statute, however, has no
specific language concerning mining on the submerged lands. If
seabed mining ever becomes a reality in Maine, this statute would
have to be substantially revised.

Coastal Management Policies (38 MRSA 1801-1803) The
legislature adopted nine coastal policies and requires all state
agencies to conduct their activities "consistent" with those
policies. The Department of Economic and Community Development
has prepared a handbook suggesting how local officials may
incorporate the coastal policies into local comprehensive plans
and land-use ordinances. The former Coastal Advisory Committee
prepared "guidelines" to assist state agencies implementing the
policies. Neither the guidelines nor the handbook, however, are
enforceable.

Protection and Improvement of Waters (38 MRSA 361-434, 464-
470, DEP Chs. 514-596) This is a broad statute that regulates
discharges into ground water, fresh-surface water, and marine
waters. The act directs the DEP to monitor groundwater, marine
and estuarine water quality; provide financial and technical
assistance for municipal pollution abatement plans and
construction projectsl@ license all direct or indirect discharges
of pollutants; and establish a water classification system for
all fresh, salt and groundwater.

Oil Discharge Prevention and Pollution Control (38 MRSA 541-
560, DEP Chs. 600-680). This law regulates the transport and
transfer of petroleum products and assigns responsibility and
liability for containment and cleanup of spills. The Department
of Environmental Protection is authorized to license the opera-

tion of any oil terminal facility or vessel used to transport
oil; approve local oil spill contingency plans for all licensed
oil terminals; undertake and ensure that clean up is conducted by
responsible parties; and administer the Maine Coastal and Inland
Surface Oil Clean Up Fund to reimburse clean-up expenses.

Endangered Species Law (12 MRSA 7151-7758, DIF&W Ch. 8)
This statute gives the Department of Inland and Fisheries and
Wildlife the authority to designate threatened and endangered
species and to protect their habitat. No state agency or munici-
pal government shall permit, license, fund, or carry out any
project that will alter the habitat of or violate the protection
guidelines for any endangered or threatened species. Hunting,
trapping, possessing, feeding, baiting, processing, exporting,
transporting, or harassing an endangered or threatened species is
prohibited.

C. Malor Programs, Plans and Strategies

Casco Bay National Estuary Project Casco Bay was designated
an estuary of national significance by the EPA in 1990. This
designation set in process a five-year planning process to
protect the bay. A Management Committee, co-chaired by EPA and
the Department of Environmental Protection, was established to
oversee the development of a comprehensive management plan for
the bay.

Coastal and Marine Sensitive Area Mapping Program This
interagency effort is an outgrowth of a report from the
commission to Study Maine's Oil Spill Cleanup Preparedness. The
report recommended that such a program be established to
identify, map, and prioritize areas that may be susceptible to an
oil spill. The Department of Environmental Protection is
coordinating this effort along with the Maine Geological Survey,
Department-of Marine Resources, and Department of Inland
Fisheries and Wildlife. This new program will be primarily used
for oil spill purposes, however, the information generated will
be useful for numerous other coastal management efforts.

Dredge Management Strategy - This is a five-part strategy to
improve dredging management in the state. The strategy calls for
(1) coordination of dredging management by the Marine Policy
Committee; (2) the development of a dredging management plan; (3)
the federal government to base its dredging priorities on mea-
sures of the overall need of each state as a whole, rather than
on factors related to the size of individual ports; (4) the
evaluation of the state regulatory process and recommend neces-
sary changes; and (5) the establishment of an interagency dredg-
ing management database and library. The Marine Policy Committee
has recently adopted the strategy for approval by the Land and
Water Resources Council.

Marine Research Board - The Marine Research Board consists
of a broad spectrum of marine interests from throughout the
state, the Commissioners of Environmental Protection and Marine
Resources, and the directors of the State Planning Office and the
Maine Geological Survey. The purpose of the board is to develop
a biennial priority statement and action plan of marine research
needs of the state. The purpose of the plan is to guide funding
recommendations and activities of the board. In addition, the
board is authorized to develop and administer a competitive,
merit-based grant program to address marine research needs of the
state.

Gulf of Maine Program - The Gulf of Maine Council on the
Marine Environment was created recently by the Governors and
Premiers of Massachusetts, New Hampshire, Maine, New Brunswick
and Nova Scotia to discuss and act upon environmental issues of
common concern in the Gulf of Maine region. These issues include
the protection and conservation of the ecological balance within
the Gulf ecosystem, marine debris and medical waste, the rela-
tionship between land use and the marine environment, the sus-
tainable use of resources within the Gulf and cooperative pro-
grams to better protect and conserve the Gulf's natural resourc-
es. The Council has prepared a 10-year natural resources action
plan and a monitoring plan for the Gulf of Maine. The Council
is composed of two representatives from each of the Gulf states
and provinces appointed by the respective Governors and Premiers.

1.42 Assessment of Problems, Issues and Effectiveness of
Current Laws and Programs

Activities in Maine's marine waters are becoming more
intense and new uses have recently been introduced. Commercial
fishing and lobstering, shipping, recreational boating, whale
watching, aquaculture, and waste disposal all occur within the
state's coastal waters. In some regions of the state it is
becoming increasingly difficult to accommodate these multiple
and often -- conflicting uses. As the uses of the marine envi-
ronment increase and problems become more complex, coordination,
among the numerous state and federal agencies becomes more
critical, yet more problematic. State government must be able to
respond effectively to resolve conflicts and minimize damage to
the marine environment.

No comprehensive State policy for the use of state
coastal waters exists.

While numerous state and federal laws and policies apply to
specific uses of the marine environment, no comprehensive policy
describes the state's overall goals and objectives in the marine
environment. That is, policies tend to address specific uses of
the coastal waters such as fishing, oil transportation, and waste
disposal independently of one another -- despite the reality that

each of these uses can and does affect the other. The individual
policies should be established within a broader context to ensure
they are coordinated. The individual policies do not add up to a
unified state agenda for the marine environment.

No comprehensive planning for the use of Maine's
coastal waters exists.

Maine, like most coastal states, lacks a tradition of
comprehensive planning for the use of the state's coastal waters.
Land-use planning requirements generally stop at the water's
edge, and the coastal waters are generally free for all to use.
Problems resulting from oil spills, pollution, habitat
destruction, use conflicts and others that have plagued coastal
waters of other states demonstrate that it is much more difficult
and expensive to restore the environment and resolve conflicts
after the fact, than it is to plan for the orderly development of
the environment in a sustainable manner. Since Maine's coastal
waters have not reached a "crisis stage" yet state and local
governments should be engaged in planning now.

There are inadequate criteria for resolving conflicts among
competing uses.

Conflicts generally occur because of: (i) the need or desire
to use the same space for two or more different and incompatible
purposes; or (ii) real or perceived'environmental threats caused
by one use affecting the environment's ability to sustain other
uses. Despite the oceans' vast size, in fact, only limited ' areas
are desirable for lobster fishing, placing salmon pens for
aquaculture, clam harvesting, anchoring boats, placing marinas
and other uses. It should be emphasized that the perception that
a conflict exists is as important as the fact that a conflict
exists. Increased communication between the various interests
should help to resolve real and perceived conflicts.

When conflicts arise between uses of the marine environment
there is very little guidance in law or regulation to assist in
@resolving those conflicts. For example, if a pending aquaculture
lease conflicts or could conflict with a pending submerged land
lease, the state's Aquaculture Lease law requires the Commission-
er of Marine Resources and the Commissioner of Conservation to
determine which project is "in the best interest of the
State. ,13

The legislature has provided limited guidance to resolve
conflicts between users of different types of fishing gear. The
Commissioner of Marine Resources has the authority to develop

13 12 MRSA, section 6072, para. 14.

regulations to prevent conflicts among harvesters of marine
resources. In developing such regulations the commissioner must
consider (i) traditional uses of marine organisms; (ii) total
economic benefits to the area in which the organisms are
harvested; and (iii) optimum economic and biological management
14
of marine resources. The law also requires the commissioner
to "accommodate the needs of all interested parties to the
maximum extent possible, through provisions of joint use, alter-
nate use or other methods." While this law applies only to
resolving conflicts between harvesters of marine resources, such
considerations could be adapted for guiding the resolution of
other conflicts within the marine environment.

There are jurisdictional gaps in existing state laws.

State laws have not been enacted specifically to cover
marine protected areas, seabed mineral mining, and marine sal-
vage. The protection of coastal habitats has long been a
priority of the Maine Coastal Program. The Department of Inland
Fisheries and Wildlife, the Department of Environmental Protec-
tion, and local governments carry out habitat protection programs
under several mandates including the Natural Resources Protection
Act, Endangered Species Law, and the Mandatory Shoreland Zoning
Act. These and other laws, however, do not accord the subtidal,
marine environment the same proactive protection that is given
the coastal environment. For example, under the NRPA, IF&W is
required to identify "significant wildlife habitats." A similar
requirement does not exist for significant habitats in the marine
environment. Similarly, the Shoreland Zoning Act covers areas
within a 250 foot strip along the coast. Within this strip,
communities are required-to adopt zoning and land-use controls.
However, these zoning requirements do not extend into the coastal
waters.

As pointed out above, mining on state lands including
submerged lands is covered by the Mining on State Lands statute.
This law, however, does not specifically consider mining on
submerged lands and the different circumstances under which such
mining would occur. The state should consider the necessity of
developing a specific statute for mining on submerged lands.

Coordination between state agencies should be improved.

Twenty-eight different state agencies and six different
federal agencies have some decision-making or planning responsi-
bility in the marine environment. While the number of agencies
is not, in and of itself, a problem, the inadequacy of coordina-
tion between and among the agencies is. Each of these agencies

14 12 MRSA 6171-A

has its own mandates, goals, policies and procedures, which often
conflict with one another. Separate agencies manage fisheries,
marine birds, marine mammals, vessel traffic, and dredging and
dredge spoil disposal. Inadequate coordination confuses the
public, the regulated community, and the federal government as to
which agency is responsible for policy and management decisions.
Decisions regarding the use and protection of the marine environ-
ment demand, by their very nature, consistent interagency coordi-
nation. Few marine policy or management decisions affect only
one use or value in the marine environment.

There is a lack of adequate information for sound decision
making.

Planning and policy development can be only as goo d as the
quantity and quality of information accessible to decision-
makers. Indeed, it is imperative that we have a sound under-
standing of the marine ecosystem and the dynamics of human use of
that ecosystem. More information and better methods for
exchanging that information are needed for such items as:

� the location of ecologically important marine habitats;
� carrying capacity or tolerance levels of bays and other
semi-enclosed marine water bodies;
the natural variability of the marine environment;
physical oceanographic characteristics of Maine's coastal
waters;
socio-economic trends, in marine industries;
regional needs for various-types of marine infrastructure;
relative value of the uses of the marine environment; and
the true cost of using the marine environment for waste
disposal.

1.5 Federal CZMA Programmatic Oblective II -- Comprehensive
Ocean Resource Management Plan

Where necessary and appropriate, develop a comprehensive ocean
resource management plan that provides for the balanced use &
development of ocean resources, coordination of existing.authori-
ties, & minimization of use conflicts.

1.51 Options for Improvement

Develop a unified, coordinated, state-wide agenda for the
marine environment that includes a coordinated effort to
determine the state's collective needs and vision for use of
coastal waters of the state.

Embark on a comprehensive planning effort in the marine
environment that considers the following options: marine use
designations; capability/suitability analyses; special

management areas; marine resource and habitat inventory and
mapping; and designation of the Gulf of Maine as the primary
management unit.

Create an institut ional entity to coordinate state policy,
planning, and management of the marine environment such as
an interagency coordinating committee, a marine and coastal
resources council, or consolidation of marine programs into
one department.

With substantial input from environmental, economic and
recreational interests and the general public, consider
designation of coastal water uses consistent with the
existing state marine/estuarine water classification
program.

Expand marine habitat inventory efforts. Undertake an
ecological research program focused on the uses and habitats
of all the state's coastal waters.

Suitability analysis or strategic planning to determine the
suitability of a given region for a particular activity or
activities, taking into consideration the human, physical
and ecological constraints of that region.

4 Designation of marine conservation areas as outstanding
resource waters or marine ecological reserves.

4 Improvement of the marine resource and habitat information
base on the state Geographic Information System (GIS).

1.6 Available Information/Studies

Catena, J., 1991. "Policy and Planning Options for Maine's
Marine Waters," (Draft) Maine State Planning Office, Augusta, ME.
Doggett, L. and J. Sowles, 1989. "Maine's Marine Environ-
ment: A Plan for Protection, A Report to the 114th Legislature,"
Maine Department of Environmental Protection, Augusta, ME.
Maine Department of Conservation (DOC), 1989. "Submerged
Lands Study," Bureau of Public Lands, DOC, Augusta, ME.
Maine State Planning Office (SPO), 1990. "An Aquaculture
Strategy for the State of Maine", Maine Coastal Program, Maine
State Planning Office, Augusta, ME.
Maine Marine Infrastructure Task Force, (draft). "Maine
Marine Infrastructure, A Report to the Governor."
Marine Law Institute, 1991. "Comparative Assessment of
State Laws Protecting the Marine Environment of the Gulf of
Maine." Prepared for the Gulf of Maine Council on the Marine
Environment.
McMahon,J., "An Ecological Reserves System for Maine:
Benchmarks in a Changing Landscape, Report to the 115th Legisla-
ture," February 1991. Maine State Planning Office.

Office of Policy and Legal Analysis, 1990. "Final Report of
the Subcommittee to Study Salmon Aquaculture in Maine, report to
the Joint Standing Committee on Marine Resources, October 1990,"
Office of Legal and Policy Analysis, State of Maine 114th Legis-
lature, Augusta, ME.
Office of Policy and Legal Analysis, 1990. "Report of the
Commission to Study Maine's Oil Spill Cleanup Preparedness,
November 1990,11 Office of Policy and Legal Analysis, State of
Maine 114th Legislature, Augusta, ME.
Van Dusen, K. and A.C. Johnson Hayden, 1989. nThe Gulf of
Maine, Sustaining Our Common Heritage," Maine State Planning
Office, Augusta, ME.

Other States

Christie, Donna R., 1989. "Florida's Ocean Future, Toward a
State Ocean Policy," March 1989, Office of Planning and Budget-
ing, Tallahassee, FL.

"Hawaii Ocean Resources Management Plan," January, 1991.
Hawaii Ocean and Marine Resources Council, Honolulu, HI.

McLaughlin, Richard and Laura S. Howorth, 1991.. "Mississippi
Ocean Policy Study." Mississippi-Alabama Sea Grant Legal Pro-
gram, University, MS.

"North Carolina and the Sea: An Ocean Policy Analysis Report
of the Ocean Policy Committee of the N.C. Marine Science Council,
Nov. 1984,11 Raleigh, N.C.

"The Oregon Ocean Resources Management Plan," 1991. Oregon
Ocean Resources Management Task Force, Portland, OR.

Section 309 Assessment

2. MARINE DEBRIS REDUCTION

Advisory Committee: Marine Policy Committee

Agency Contacts

Jean Chenoweth, Public Information Coordinator, DMR
John Catena, Maine Coastal Program, SPO
Nancy Griffin, Coastweek Coordinator, SPO
Jackie Dingfelder, Maine Waste Management Agency
Steve Curtis, Director of Operations and Maintenance, BPR

Public Interest Contacts

Lt. S.B. Woodruff, Port Operations Officer, U.S.C.G.
Tim Zorach, Maine Audubon
Jeff Kaelin, Maine Fisheries Association
Maine Harbormasters Association

Marine Debris Reduction

CONTENTS

2.0 SUMMARY

2.1 Maine's Key Coastal Management Policies

2.2 Federal CZMA Legislative Objective

2.3 Federal Assessment Characterization

2.31 Scope & Definitions
2.32 Available Information/Studies
2.33 Assessment of Problems & Issues

2.4 Federal CZMA Programmatic Objective -- Reduction of Marine
Debris

2.41 Existing Laws, Regulations, Programs

a. Recycling
b. State consistency with*the Marine Plastic
Pollution Research & Control Act
c. Coastal Solid Waste Management Plans
d. Educating the Marine Community

2.42 Options for Improvement

2.43 Baseline for Measuring Progress

2.5 Available Information/Studies

[jr.deb] 1/14/92

.2.0 SUMMARY

Marine debris is defined as any manufactured material that is
accidently or purposefully disposed of in the sea. Marine debris,
that accumulates on Maine shores and in tidal waters may persist
for decades. More than 60% of the items collected in annual
Cleanups are made of plastic.

Marine debris endangers coastal and marine life. Seabirds and
fish amass plastic in their digestive systems. 'Ghost' traps and
nets entangle marine life including seals, sea turtles and
porpoises. Debris may displace natural vegetation and alter
habitats.

The volume of trash in the marine environment continues to
increase, despite annual state-sponsored cleanup efforts, stronger
federal regulation of trash dumped at sea, and a public awareness
of the need to remove debris from the marine environment.

Accoml2lishments

The Maine Coastal Prog.@am has sponsored annual Coastal
Cleanups for the past seven years. The Cleanups remove tons of
debris from Maine shores, involve thousands of volunteers and
provide data on the amount and type of debris found on the
coast.

State legislation requiring deposits on certain containers and
promoting community-based recycling programs has effectively
reduced the amount of plastics and beverage containers in the
waste stream.

The U.S. Coast Guard in Maine enforces the MARPOL Treaty which
prohibits ocean dumping of plastics, except for certain
accidental loss of fishing nets and regulates the disposal of
other solid waste. The U.S Coast Guard also inspects port
facilities of a certain size to ensure that the facilities can
accommodate solid waste from ships.

At least 70 coastal towns have local harbor ordinances, most
of which prohibit the dumping of waste or refuse.

problems.

Despite Coastal Cleanups and education efforts, marine debris
continues to accumulate in coastal environments.

Laws prohibiting disposal of litter at sea are difficult to
enforce.

2.1 Maine's Key Coastal Management Policies (38 MRSA 1801)

MARINE RESOURCE MANAGEMENT. Manage the marine
environment and its related resources to preserve and
improve the ecological integrity and diversity of
marine communities and habitats, to expand our
understanding of the Gulf of Maine and coastal waters
and to enhance the economic value of the State's
renewable marine resources.

WATER QUALITY. Restore and maintain the quality
of our fresh, marine and estuarine waters to allow for
the broadest possible diversity of public and private
uses.

SCENIC AND NATURAL AREAS PROTECTION. Protect and
manage critical habitat and natural areas of state and
national significance and maintain the scenic beauty
and character of the coast even in areas where
development occurs.

2.2 Federal CZMA Legislative Objective

� 309(a)(4) Reducing marine debris entering the Nation's coastal
and ocean environment by managing uses and activities that
contribute to the entry of such debris.

2.3 CZMA Assessment Characterization

Identify the impact of marine debris on the coastal zone and the
primary sources responsible.

2.31 Scope & Definitions

Plastic bottles, old lobster traps, pieces of net and rope,
aluminum cans, and styrofoam chunks that accumulate on beaches
and tidal waters are collectively referred to as marine debris.
Marine debris includes any manufactured object of wood, plastic,
glass, metal, cloth or other material that is disposed of in the
marine environment, either purposefully or accidently.

2.32 Available Information/Studies

Marine debris in Maine has been informally surveyed through
data collected as part of annual Coastal Cleanups since 1985.
Coastal Cleanups are one-day trash collection events coordinated
along the Maine coast each fall by the Maine Coastal Program of
the State Planning Office. Volunteers record their finds on data
cards supplied by the Center for Marine Conservation. Maine
Coastal Program staff tally the Maine data and the Center for
Marine Conservation compiles the results with other state totals.
Survey results are approximate, since data collection is not
rigorously controlled, but they are the best indication to date
of the types, sources and volume of debris cluttering Maine's
coast.

2.33 Assessment of Problems & Issues

a. Impact of Marine Debris

Marine debris is a persistent and growing problem in Maine
waters. More than an unsightly mess or nuisance, marine debris
can cause serious harm to the marine environment and poses risks
to navigation, and human health. Marine debris degrades.coastal
beaches and habitats and endangers the health of marine and
estuarine plants and animals. Marine debris resting on beaches,
tidal flats, and submerged bottomlands, covers and displaces the
indigenous vegetation and habitat.

Plastics are of particular concern because plastic products
float and persist in the marine environment for hundreds of
years. Plastic products and styrofoam do not degrade into

Italicized text is excerpted from federal guidance for the
309 assessments.

harmless products; they break into smaller and smaller pieces of
plastic. Fish, birds, marine mammals (including seals and
whales), and sea turtles, occasionally ingest or become entangled
in plastic marine debris.

Active and abandoned fishing gear presents a hazard to
marine wildlife. Lost traps, monofilament line, nets and other
fishing gear may continue to entrap marine life for years after
disappearing from the harvesters' care. Data on numbers of
'ghost' traps and nets is unavailable; present estimates rely on
Anecdotal evidence. Current regulations that require degradable
vents on lobster traps will reduce the numbers of ghost traps.

A National Marine Fisheries Study in Maine estimated that
between 300 to 1,000 harbor porpoises and 50 harbor seals are
entangled in active fishing gear along the coast each year (Van
Dusen and Schauffler, 1988). These numbers have been challenged,
and efforts are underway by marine observers on.fishing vessels
to substantiate the NMFS estimates. The recent resurgence of the
gillnet fishery may pose an increased hazard to marine wildlife.

Marine debris is a visual eyesore affecting the aesthetic
value of shore areas. This visual impact may have an economic
impact if local property values and use by residents and visitors
declines. Marine debris also can foul nets and other fishing gear
as well as damage boat props and engines, causing economic loss
and safety hazards. Debris-related losses to Maine fishing
vessels are unknown, but in 1987, commercial fishermen from the
Port of Newport, Oregon reported losses of nearly $1,000 per
vessel per year from damage related to marine debris.

b. Extent of Marine Debris in Maine

During the 1991 Coastal Clean-up, an estimated 17 tons of
trash was collected from 200 miles of shoreline. Debris was
collected all along the coast from urban harbors to remote island
shores. According to Maine's Coastal Cleanup Coordinator, the
volume of debris has not dwindled with the annual pickups --
beaches scoured clean one year are littered with trash the next.
The table below suggests the persistence of the marine debris
problem, despite yearly clean-ups.

Summary of Maine's Coastal Cleanup Results (1985-1990)

Miles of Collected per Mile
Coastline # of # of
Covered Pounds Items

1985 30 53 439
1986 70 86 338
1987 81 88 240
1988 114 133 455
1989 176 103 689
1990 190 157 684

C. Debris Sources and Categories

The major sources of marine debris in Maine are: boaters--
recreational and commercial; sea-side visitors--including
tourists, residents and recreational fishermen; run-off of
surface waters--including waters from storm drains and CSOs;
illegal direct dumping; and shipwrecks. Debris from foreign
fishing and merchant vessels outside the Gulf of Maine does not
appear to be a problem on the Maine coast. The amount of debris
from military operations and vessels is undocumented in Maine
waters.

The breakdown of items found during Maine's 1989 Coastal
Cleanup, by type of material, was as follows:

Plastic 41%
Styrofoam 16%
Glass 16%
Metal 11%
Paper 9%
Rubber 4%
Wood 2%
Cloth 1%

Styrofoam and polystyrene, used as flotation for docks,
buoys, and floats, comprise a significant portion of the marine
debris found on the Maine coast. Styrofoam and plastic items
accounted for 57 percent of the debris collected during the 1989
cleanup and 61 percent in 1990.

The 121,342 items collected in 1989 included 7,981 plastic
bags; 4,550 styrofoam cups; 4,054 glass bottles; 1,192
milk/water jugs; 498 six-pack yokes; 536 balloons; and 359
tires and miscellaneous items (such as a bedpost, windshield,
waterbed mattress, hair dryer. Not included in the count were 3
dead herring gulls which apparently died from debris entanglement
or ingestion and a bird whose head was caught inside a plastic
jug.

Packaging debris such as oil cans, bleach bottles, beverage
cans and bottles, styrofoam cups and plastic bags are common on
Maine shores. Such debris is left by recreational and commercial
boaters and by seaside visitors to beaches, parks and other
public access points. An unknown amount of packaging debris
washes off roads through combined sewer overflows and storm
sewers during heavy rains. Coastal rivers transport trash from
inland areas, particularly during spring floods and storms.

In the summer of 1989, medical waste washed ashore on
Crescent Beach State Park in southern Maine. This incident
sparked concern for medical waste disposal, and the Department of
Conservation developed a policy for handling medical waste items
in the event medical waste is discovered on state managed
beaches. The Crescent Beach event appears to be an isolated
incident since no further medical waste has been discovered
during coastal cleanups.

Fishing and boating gear (nets, lobster traps, pieces of
rope, rubber boots, plastic fish totes, and clamming gloves)
account for approximately 9.6 percent of the marine debris
collected during the 1989 cleanup in Maine. Commercial fishing,
recreational fishing, and aquaculture activities account for most
of this type of debris.

Boat accidents and abandonments contribute marine debris to
Maine waters. Recent efforts to salvage the Empire Knight, a
vessel which sunk off the coast of Kittery in 1944 with military
and civilian cargo, has focused attention on the potential for
hazardous waste releases during salvage operations. Rotting hulls
of schooners lie in many coves along the coast. While some view
the boat skeletons as historic reminders of a bygone era, others
view them as marine debris.

d. Prolections/Trends

The table above from Maine Coastal Cleanups indicates that
marine debris continues to accumulate on Maine shores despite
yearly removal, and that the amount of debris is increasing.
Marine debris will continue to impact Maine waters as use of
coastal waters and shorelands intensifies.

2.4 Federal CZMA Programmatic Oblective -- Reduction of Marine
Debris

Develop or revise programs that reduce the amount of marine
debris in the coastal zone.

* Develop or enhance state and local programs that require
recycling and reduce littering and wasteful packaging in the
coastal zone.

Establish state and local regulations consistent with the
Marine Plastic Pollution Research and Control Act of 1987
and develop enforcement strategies and programs.

Incorporate marine debris concerns into harbor, port,
marina and coastal solid waste management plans.

Develop or enhance programs within the state which
educate the marine community about debris, and state and
local reduction requirements.

2.41 Existing Laws, Regulations, Programs

a. Recycling and Litter Reduction

Title 17, the Litter Law, sections 2264-2267, prohibit the
disposal of litter on public land or private property not owned
by the litterer and all waters and ice. The law further
specifies that "no person shall throw, drop, deposit, discard or
otherwise dispose of litter from any watercraft upon private or
public property .... upon any public beach or into any waters
within the jurisdiction of this State". All enforcement officers
of the State (including State Police, local police, county
sheriffs, Department of Marine Resource wardens and Department of
Inland Fish and wildlife wardens) are authorized to enforce the
litter laws.

In 1991, six-pack rings were banned from use in packaging by
the State legislature, with a provision that the Department of
Food and Rural Resources could exempt six-pack rings that met
certain criteria. A bill introduced in the same session to
prohibit the outdoor release of helium-filled balloons failed
passage.

Effectiveness: Legislation to promote community-based
recycling programs and the formation of the Maine Waste
Management Agency has effectively reduced the amount of plastics
and beverage containers in the waste stream and increased public
awareness of waste disposal issues. The state bottle bill has
undoubtedly decreased the amount of beverage containers left as
marine debris. The Center for Marine Conservation reports that
states with bottle deposit laws have significantly fewer beverage
containers collected during cleanups (CMC 1989).

b. State Consistency with the Marine Plastic
Pollution Research & Control Act

The federal government regulates the disposal of waste at
sea outside of Maine waters (beyond the three-mile limit). State
law regulates the discharge of waste into State waters and issues
NPDES permits.

Annex V of the International Convention for the Prevention
of Pollution of Ships is an international treaty ratified
December 31, 1988, that prohibits ocean dumping of plastics
(except for certain accidental loss of fishing nets) and
regulates the distance from shore that other solid waste
materials may be dumped. Known as the MARPOL treaty, Annex V

requires party nations to have adequate port facilities to
accommodate ships' garbage. Debris from military vessels is
exempt from MARPOL jurisdiction.

The Marine Plastic Pollution Research and Control Act of
1987 (Public Law 100-200, Title II) was enacted by the U.S.
Congress to implement the MARPOL Treaty. Title II required the
U.S. Coast Guard to be responsible for enforcement. The Act to
Prevent Pollution from Ships (33 USC 1901 et seq.) authorizes the
Coast Guard to administer and enforce the provisions of Annex V
and provides for civil and criminal penalties for willful viola-
tors of the Act.

Effectiveness: Enforcement of the MARPOL discharge
provisions is difficult and the Coast Guard is concentrating on
education and increasing the availability of port-side disposal
facilities to ensure compliance. The Coast Guard requires ports
which receive ships subject to Annex I and II of the MARPOL
Treaty or which receive more than 500,000 pounds of fishery
products to have a Certificate of Adequacy (COA). The COA assures
that the port has adequate facilities to handle ship refuse. In
addition, all marinas and recreational boating facilities with
slips for over 10 boats are required to have adequate waste
reception facilities (USDOC, 1990). In Maine, 46 port facilities
have COAs for garbage and/or oily waste. Port facilities with
COAs include power stations and shoreside industrial facilities
(ie., BIW). All commercial vessels and recreational boats beyond
a certain size are required to post placards with MARPOL
regulations and procedures for trash disposal.

Various state laws regulate the-discharge of substances into
Maine coastal waters, but do not specifically mention marine
debris. Sections of the Protection and Improvement of Waters
(Chapter 3 of Title 38, Waters and Navigation Act) requires
licenses for the discharge of pollutants to inland and coastal
waters of the state. Section 423 prohibits the discharge of
sewage, garbage and other pollutants from watercraft into inland
waters, on ice or banks. Coastal waters are not included in the
language of this section.

C. Coastal Solid Waste Management Plans

Under Title 38, towns have the authority to adopt local
harbor ordinances which may include sanitation regulations that
prohibit the discharge of debris and other substances into harbor
waters. Local harbor masters must enforce state statutes as well
as locally adopted ordinances.

Effectiveness: As of October 1991, 70 coastal towns (out of
96 with significant harbors) have local harbor ordinances.
Although the language of the ordinances varies, most include a
standard provision prohibiting the dumping of waste or refuse.

d. Educating the Marine Community

In the past, coastal communities often located dumps on salt
marshes and along bays. Old automobiles and tires were routinely
disposed of in the ocean, ostensibly to provide artificial reefs
for fish. Household trash was commonly dropped off the edge of
the fishhouse dock each day before the fishermen boarded his
boat. These practices were discontinued decades ago, although
until recently, some island communities continued to dispose of
municipal trash in the sea.

State environmental regulations and educational campaigns by
state agencies and private conservation groups have raised public
awareness of the consequences of disposing of plastics and other
debris in the ocean. In 1990, the Bureau of Parks and Recreation/
Department of Conservation instituted a carry in/carry out policy
at state parks that encouraged visitors to take their trash home
for appropriate disposal. The program began in response to the
mounting costs and time spent on solid waste disposal at state
parks and historic sites. The program has been successful and
reduced,rubbish at some areas by.80 percent.

Yearly Coastweek and Coastal Cleanup events, organized by
the Maine@ Coastal Program of the State Planning Office, have
focused attention on marine debris and have been an effective
vehicle to directly involve the public in conservation efforts
and to generate publicity on marine debris issues. Maine
Audubon, Maine Island Trail Association and other private
conservation groups throughout the state have worked to reduce
the amount of marine debris by participating in coastal clean ups
and developing public education materials.

2.42 Options for Improvement

The effectiveness of Coastal Cleanup efforts should be
reviewed and evaluated.

Develop a campaign to educate tourists about the
importance of proper disposal of trash while visiting
the coast and the problem of marine debris. Target
visitors who may not have bottle return or recycling
programs in their home states.

Propose legislation that places deposits on oil bottles
and boat-related products (toxic paints, cleaners,
etc.). Promote refillable bottles.

Extend local recycling programs to marinas, public
docks and commercial wharves.

Establish a model marine debris recovery and recycling
project in an active port. The pilot project would
explore incentives to promote compliance with debris
disposal .1-ews and funding strategies.

Target education efforts at major marine user groups
such as, beach goers, commercial fishermen and
recreational boaters. Publicize local regulations and
federal laws prohibiting disposal of debris at sea.
Distribute information on recycling and marine debris
with boat licenses.

Develop incentives for proper disposal of boat waste
(and sewage pump-out) at marinas.

Expand the BPR/DOC carry in/ carry out program to
include recycling efforts at state parks and
campgrounds.

2.43 Baseline for Measuring Progress

Coastal Clean-up Data Collection -- Monitor track specific
stretches of shore in diverse areas of the coast for change in
composition or volume of trash over a number of seasons and
years.

2.5 Available Information/ Studies

Debenham, Patty and L.K. Younger. 1991. "Cleaning North
America's Beaches, 1990 Beach Cleanup Results," Center for Marine
Conservation, Washington, DC.
Griffin, Nancy and K. Van Dusen. 1990. " Report on
Coastweek/Cleanup 1990," Maine Coastal Program, State Planning
Office, Augusta, ME.
Recht, Fran. 1988. "Dealing with Annex V - Reference Guide
for Ports," NOAA Technical Memorandum NMFS F/NWR-23, U.S.
Department of Commerce, NOAA, National Marine Fisheries Service,
Seattle, WA.
Schauffler, Flis. 1989. "Maine's Coastal Cleanup 189 Summary
Report and Recommendations," Maine Coastal Program, State
Planning Office, Augusta, ME.

Section 309 Assessment

31 PUBLIC ACCESS

Advisory Committee: Growth Management

Agency Contacts

Tammy Risser, DECD
Dave Keeley, SPO
Tom Cieslinski, DOC/BPR
John Picher, DECD
Steve Oliveri, DOC/BPL

Public Interest Contacts

Island Institute
Maine Audubon
Maine Coast Heritage Trust

Public Access

CONTENTS

3.0 Summary

3.1 Maine's Key Coastal Management Policies

3.2 Federal CZMA Legislative Objectives

3.3 Federal CZMA Assessment Characterization

3.31 Scope & Definitions
3.32 Available Information/Studies
3.33 Assessment of Problems & Issues

3.4 Federal CZMA Programmatic Objective I Coastal Access
Regulations

3.41 Existing Laws, Regulations
3.42 Existing Programs
3.43 Options for Improvement

3.5 Federal CZMA Programmatic Objective II Funding &
Acquisition of Coastal Access Sites

3.51 Existing Programs
.3.52 Options for Improvement
3.53 Baseline for Measuring Progress

3.6 Federal CZMA Programmatic objective III -- Coastal Access
Plan

3.61 Existing Coastal Access Plans
3.62 Options for Improvement

3.7 Federal CZMA Programmatic Objective IV -- Adverse Impacts of
Public Access

3.71 Existing Laws, Regulations, Programs
3.72 Options for Improvement

3.8 Available Information/ Studies

[jr.accl 1/16/92

3.0 SUMMARY

Public access to the coast embraces both physical access to
the shore as well as visual access to traditional coastal
landscapes. Access to the coast of Maine is limited. Although
Maine has more than 3,600 miles of tidal coastline, less than 7
percent is owned by public entities. Public access sites are used
for recreation, boat launching, shellfish harvesting, hunting,
fishing and many other traditional uses.

Accomplishments

Maine has over 1,000 documented public access sites on the
coast, including state and federal lands and parks, town-
owned lands, boat ramps, picnic areas, lands in conservation
ownership, and privately-owned lands and paths traditionally
used by residents and visitors.

4 State agencies administer several programs funded with
federal and state dollars to acquire access sites on the
coast.

In particular, the Land for Maine's Future Program,
established with a voter-approved bond issue in 1988, has
acquired over 3,553 acres of coastal property with more than
16 miles of combined shore frontage.

More than 35 coastal boast launching facilities are
maintained by the Department of Conservation.

The Land and Water Conservation Fund managed by the
Department of Economic and Community Development and funded
by federal dollars, has also acquired properties along the
coast for public use.

More than 60 local land trusts and other non-profit
organizations 'retain easements on or own islands and other
coastal lands in Maine.

The towns of Brunswick,.Freeport, Yarmouth and Cumberland
recently discovered a 1727 ordinance that allows the public
expanded rights to access shorelands within the boundaries
of colonial North Yarmouth.

State laws and regulations promote public access to the
coast.

State shoreland zoning guidelines and the Subdivision Review
Act instruct local planning boards to to ensure that
proposed activities conserve access to inland and coastal
waters.

Submerged Land Rules that cover leasing of submerged tidal
lands, may require applicants to provide public access.

In addition, local comprehensive plans must be consistent
with the state coastal policies promoting public access and
giving preference to water-dependent uses over other uses.

Coastal Public Access in Maine , a report prepared by the
Maine Coastal Program, inventories public access sites along
the coast. Many coastal communities have inventoried public
access sites and needs as part of past and current
comprehensive planning efforts.

The State Planning Office recently completed an assessment
of port and harbor needs including repair or new
construction of piers and docks as well as access facility
needs.

Problems

Subdivisions and transfer of ownership of coastal shorefront
lands jeopardies the Maine tradition of free and easy
passage over private lands to tidal waters.

Funding for public land acquisition and maintenance has
declined significantly.

Current laws and regulations lack the criteria needed to
consistently expand access opportunities during the land use
permitting process at the state and municipal level.

Access to the shore is limited by private ownership rights
that extend down to the low tide mark. The public has the
right to access intertidal areas for fishing, fowling, and
navigation activities. In other states, public access rights
in intertidal areas include recreation.

Public beach sites in southern and mid-coast Maine are
intensively by the public, resulting seasonal parking
problems and overcrowding.

In some areas of the coast, recreational users compete with
traditional maritime users for mooring space and land-based
service facilities.

3.1 Maine's Key-Coastal Manacrement Policies
Relating to Public Access (38 MRSA @1801)

PORT AND HARBOR DEVELOPMENT. Promote the
maintenance, development and revitalization of the
State's ports and harbors for fishing, transportation
and recreation.

RECREATION & TOURISM. Expand the opportunities
for outdoor recreation and encourage appropriate
coastal tourist activities and development.

3.2 Federal CZMA Legislative Oblective

� 309(a)(3) Attaining increased opportunities for public access,
taking into acco-unit current and future public access needs, to
coastal areas of recreational, historical, aesthetic, ecological,
or cultural value.'

3.3 Federal CZMA Assessment Characterization

Characterize the adequacy of existing public access site
improvements and maintenance programs.

3.31 Scope & Definitions

In Maine, coastal access includes physical and visual access
to coastal shorelands, waters and resources by the public for a
variety of uses. Under state statute, water-dependent uses, those
shoreline uses that require a shoreside location--such as fish
docks and boatyards--are priority uses of shorelands.

There are over 1,000 access sites (publicly and privately-
owned) along Maine's 3,500-mile coastline. Access sites in
coastal Maine include state and federal lands and parks,
municipally-owned lands, boat ramps, picnic areas, undeveloped
lands in non-profit conservation ownership, and privately-owned
accessways and shore sites historically used by fishermen and
other residents.

Less than 7 percent of Maine coastal shoreline is publicly-
owned. A small percentage is owned by non-profit conservation
groups and the remainder by private individuals and corporations.
Of the known public access sites along the coast approximately 40
percent are owned by local governments and approximately 38
percent are privately-owned. These limited access opportunities
must serve the more than 600,000 residents living in the 144
coastal municipalities as well as the influx of seasonal visitors
that migrate to the coast each summer.

3.32 Available Information/Studies

In 1988, the Maine Coastal Program updated previous access
inventories and compiled a data base of over 1000 known coastal
access sites including 682 publicly-owned access sites in coastal
communities (Dawson, 1990). To date, the Dawson report is the
most authoritative source of information that characterizes the
extent of shore access opportunities. At the local level, many

Italicized text is excerpted from federal CZMA guidance for
Section 309 assessments.

coastal communities have inventoried public access sites and
assessed access needs as part of comprehensive planning efforts.

A recent planning study of Maine's port and harbor
facilities included public access and land acquisition needs as
well as needs for new construction, repair and rehabilitation of
piers, docks and wharves. Priority projects were identified by
surveying municipal officials, user groups and State agencies,
and a funding strategy recommended for legislative action in 1990
(Sasaki Associates, 1990).

3.33 Assessment of Problems & Issues

a. Access Issues

Recreational access -- In coastal areas with strong tourism
and recreation industries, shore access for recreational purposes
and visitor management are key concerns. These areas are
primarily in southern and mid-coastal Maine.

Commercial fishing -- In areas with fishing fleets,
commercial fishermen are threatened by competition from
recreational boaters vying for shoreside facilities and use of
marine waters. In addition, water dependent uses also compete
with residential and commercial users for location along the
limited coastal shoreline.

Overcrowding -- Irrespective of the type of access being
provided, Maine is concerned about the environmental, economic
and cultural impact of the increased use of the waters and
shorelands. Several island communities have taken measures to
limit the impact of visitors, for example.

In 1986, approximately two thousand state residents were
surveyed to identify the problems, at that time, concerning
access to the coast (SPO, 1986). The survey found about 41
percent of the boaters, commercial fishermen, diggers, and
surfcasters surveyed from all sections of the coast, perceived
that access to the coast was more difficult at the time of the
survey than in the past and that traditional access paths over
private lands to the coast for clam and worm digging and duck
hunting were significantly restricted because of posting and
changes in property ownership. Most respondents agreed that
government should establish more rights-of-way.

Although survey respondents perceived that certain state
parks were overcrowded and parking was a problem at some access
facilities. Recent surveys by the Bureau of Public Recreation
show that crowding is not a problem and that Reid and Popham
state parks (two of the most popular Maine beaches) are filled to
capacity on only about ten days during the summer.

Other access issues include: concerns about the liability of
landowners who provide public access ways for recreational users;
a decline in coastal water quality attributable in part to in-
creased water and shoreland use; the need to increase protection
of public trust rights; the need for increased protection of
sites for water-dependent uses; and the need for improved
management of tourism in ecologically sensitive areas.

b. Coastal Access Needs

Maine currently has very limited information to assess the
current level of use at most access facilities and the quality
and condition of those facilities. Furthermore, the need for
specific access facilities have not been identified on the local
level. Consequently, a priority for Maine is to develop a
rigorous approach to evaluating public access needs along the
coast. This approach would define access needs geographically and
the types of access needed. In lieu of this rigorous approach,
Maine has developed the following inconclusive information on
coastal access needs.

The extent and type of public access needs vary regionally
along the coast. There are numerous access facilities on the
Maine coast, but, they are unevenly distributed. Demand for
different types of public access varies from region to region.
For example, some crowded harbors need more and improved
facilities (i.e. wharves, moorings, etc.) for all types of
boaters. Other harbors require service facilities to accommodate
recreational boaters and to keep commercial harvesters. Shellfish
and worm diggers often require accessways over private lands to
reach productive flats.

In 1988, the Maine Bureau of Parks and Recreation (BPR)
prepared a regional needs analysis for recreational facilities as
part of the Maine Assessment and Policy Plan for Outdoor
Recreation. The coastal access information was organized to
correspond to five planning regions:

South Coast Region -- Coastal towns in York and Cumberland
counties except Brunswick and Harpswell.
Mid-Coast Region -- Brunswick, Harpswell, all coastal towns
in Sagadahoc County except Richmond, and all coastal towns
in Lincoln, Knox, and Waldo Counties.
Kennebec Valley Region Richmond and all coastal towns in
Kennebec County.
Downeast/Acadia Region All coastal towns in Penobscot and
Hancock Counties.
Sunrise County Region All coastal towns in Washington
County.

The BPR study projects acreage needs by 1993 for ocean
swimming, picnic, and boat access in each planning region. The

analysis concludes that needs vary considerably along the coast,
with projected general access needs the highest for the Downeast/
Acadia Region followed by the South Coast Region, the Mid-coast
Region, the Kennebec Valley region, and finally, the Sunrise
County Region.

The Dawson study (1990) concludes from previous.SPO and BPR
surveys that boat access sites are most needed in the South Coast
region, followed by the Mid-coast, Kennebec Valley and
Downeast/Acadia Region; ocean swimming sites are most needed in
Downeast/Acadia, followed by the Mid-coast, Sunrise County and
South Coast Regions, and coastal picnic sites are most needed in
Downeast/Acadia followed by South Coast and the Kennebec Valley
Regions.

3.4 Federal CZMA Programmatic Oblective I -- Coastal Access
Regulations

Improve public access through regulatory, statutory, and legal
systems.

Develop and revise statellocal statutes and regulations to
better provide public access, including utilization of
permit conditions. -

& Assist and encourage local governments in revising local
ordinances to provide for additional public access.

- Develop legal strategies based on the public trust
doctrine and other public interest doctrines to protect and
enhance opportunities for public access.

0 Increase the use of federal consistency as a tool to
require public access.

3.41 Existing Laws and Regulations

a. Legal Doctrines Securing Public Access Rights --

Ownership & Access Rights under the Colonial Ordinances
Most owners of shorefront property in Maine own the land
between the high and low tide marks as well as adjacent uplands.
Land below the mean low water mark (out three miles to federal
waters) is owned and managed by the State. Under the Colonial
Ordinance of 1641-1647, the public has certain rights in
intertidal areas which include access for fishing, fowling and
navigation. In the Moody Beach case of 1988, Maine's Law Court
ruled that the traditional public rights in intertidal areas did
not include recreational use.

Easement by Prescription
The public may acquire rights to continue to use a piece of

property by prescriptive use, if the general public has made
continuous and uninterrupted use of the property for at least
twenty years "under a claim of right, adverse to the owner,,@with
his knowledge and acquiescence, or by use so open, notorious,
visible and uninterrupted that knowledge and acquiescence will be
presumed." Legal establishment of these rights may be quite
difficult, however, as illustrated by the Moody Beach Case.

The doctrine of custom can also be used to secure public
rights to land and is recognized by the Maine Law Court as part
of common law. To establish rights under this theory several
conditions must be proved including that use has been in effect
"so long as the memory of man runneth not to the contrary."

b. State Laws Establishing Access Rights

Five state laws grant the state and towns authority to
establish and protect publicaccess to coastal resources. Those
laws are:
the Comprehensive Planning and Land Use Regulation Act
of 1988 (Growth Management Act) (30-A M.R.S.A. 4311 et
seq.);
the Coastal Management Policies Act of 1986 (38
M.R.S.A. 1801 et seq.);
the Mandatory Shoreland Zoning Act (38 M.R.S.A. 435 et
seq.);
the Subdivision Review Act (30-A M.R.S.A. 4401 et
seq.); and
the Submerged Lands Act (12 M.R.S.A. 558-573).

The Coastal Management Policies and the Growth Management
Goals expressed in the Growth Management Act, seek to promote
coastal access for recreational and commercial uses. Local
comprehensive plans and implementation programs required for all
communities by the Growth Management Act must be consistent with
these state policies. The Office of Comprehensive Planning (OCP)
in the Department of Economic and Community Development reviews
comprehensive plans of coastal communities to ensure that the
coastal policies and state goals are addressed.

The minimum guidelines for ordinances required by the
Mandatory Shoreland Zoning Act encourage designation of
appropriate areas that are uniquely suited to water-dependent use
development. The Submerged Lands-Act gives priority to commercial
fishing interests over other uses for submerged lands.

The Subdivision Review Act allows towns with subdivision
review authority to consider a development proposals' effect on
public access to the shore. The act specifies that proposal
approval must not have "undue adverse effect on ... public rights
for physical or visual access to the shoreline."

Submerged Land Rules, Chapter 3.6 (A)(2)(d), of the
Submerged Lands Act allow the Bureau of Public Lands to require
applicants to provide free public access for water dependent or
associated uses (MLI,1987). The Submerged Lands Law is the only
state legislation that specifically mentions the Public Trust
Doctrine, and then only with reference to lands below the low
water mark. The conversion of existing water dependent use sites
to non-water dependent uses are limited on submerged lands and
state-owned tidelands.

Federal Consistency
The Maine State Planning office, through the Maine Coastal
Program (MCP), can require federal projects to be consistent with
state coastal policies and laws. The consistency provisions are
authorized under Section 307 of the Federal Coastal Zone
Management Act (CZMA, 16 U.S.C. 1456). Examples of listed direct
federal activities eligible for consistency review by the MCP
which may be used to improve public access are: proposed new
National Park or U.S. Fish and Wildlife acquisitions,.locations
and design of communication, air navigation and Coast Guard
facilities, and the disposal of federal surplus lands. Many
federal licenses are also subject to consistency review, such as
Section 404, Army Corps of Engineers permits and NPDES
(discharge) permits from the Environmental Protection Agency.

C. Effectiveness

Current state laws and regulations were not written to be
used in a proactive manner to increase the extent of shore access
sites. In 1986, state legislation was approved that required the
provision of shore access under certain conditions but it was
subsequently rejected by the law court.

The Mandatory Shoreland Zoning Act authorizes, but does not
require protection of physical and visual access to the shore.
The model Minimum Shoreland Zoning Ordinance does not include
specific criteria and standards for conservation of public
accessways. Towns may adopt general zoning ordinances which
overlay shoreland areas to include public access and use
provisions. Towns which adopt the minimum state ordinance without
modification to include access provisions or criteria, lack the
legal framework to include access consideration in permit review
decisions.

To date, few coastal towns have incorporated guidelines or
criteria designed to protect public access into local shoreland
zoning or subdivision ordinances. Towns that have obtained access
provisions or easements in shoreside developments usually acquire
the concessions during negotiations while the plan is being
reviewed by the town planning board.

Shoreland and other ordinances (including subdivision

ordinances) must be based on a comprehensive plan. If the town
does not address public access in its comprehensive plan, access
provisions cannot be included in town ordinances.

State law regarding prescriptive easements is clear and
allows municipalities to explore historic rights-of-way to
determine their ownership. To establish rights by prescriptive
use, the land must have been used with the owner's knowledge and
"acquiescence"--meaning that consent was given silently without
express permission. This is difficult to prove under Maine law.
Maine courts presume use of "wild and uncultivated land,"
including private beaches used by the public, are used with
permission of the owner (Burrowes, 1990).

The Moody Beach Case decision which barred the public from
recreational use of a privately-owned beach in Wells, Maine is a
serious setback to the use of the doctrine of custom as a tool
for establishing public access rights, although recent work
researching the 1727 North Yarmouth Colonial Ordinance may offer
some new possibilities.

The Submerged Lands Law authorizes the Director of the
Bureau of Public Lands to require public benefits (such as public
access) from submerged lands leases. Specific rules detailing
implementation of this provision are under review.

3.42 Existing Programs

a. Scope

Coastal Access Coordination -- Coastal access inventory data
and technical assistance materials are available from the Maine
Coastal Program. In addition, the office of Comprehensive
Planning (OCP) provides tech'nical assistance to towns regarding
public access and reviews public access components of municipal
comprehensive plans. Handbooks available from OCP/DECD include:

� "Coastal Right-of Way Discovery Programs"
� "Liability"
*."Planning and Implementing Public Shoreline Access."

The Coastal Right-of Way Discovery Project -- The Marine Law
Institute of the University of Southern Maine researched
traditional access points in eight Maine communities to determine
if the public had access rights to certain areas. A handbook,
"Coastal Right-of Way Rediscovery Programs" was developed to
assist communities interested in discovering and maintaining
traditional rights-of way to the coast.

Interagency Task Force on Marine Infrastructure - In 1989,
the Legislature established a Task Force to assess marine
infrastructure needs and priorities. The final report from this

task force will be published in early 1992.

Several towns have passed bond issues to purchase land, and
others have worked with public and private groups to acquire
important shorefront parcels.

b. Effectiveness

The Coastal Right-of Way project ceased with the publication
of the handbook. Efforts by local officials to establish
traditional rights-of way have been hampered by the costs
involved in documentation and legal difficulties involved with
establishing prescriptive easements.

3.43 Options for Improvement

Identify areas where traditional access to intertidal
areas is threatened or has been cut-off by development
and negotiate easements. Support local efforts to
acquire access through technical assistance and grants.

With local land trusts, support a voluntary landowner
cooperation program which pursues agreements with
private landowners to allow limited public use of
shorelands.

Develop criteria and guidelines to ensure public access
provisions in certain shoreland development projects
subject to local shoreland zoning and subdivision
ordinance review. Develop sample ordinance provisions
that address access and continue technical assistance
to towns.

Amend the Natural Resources Protection and the Site
Location of Development rules to require developers to
demonstrate that their project does not interfere with
existing legal rights of'access.

The Maine Coastal Program should actively use
consistency requirements of the federal Coastal Zone
Management Act to expand public access opportunities
during federal activities such as sale of surplus
government property along the coast.

Develop a strategy to expand the public trust doctrine
in Maine. Investigate applications of the public trust
doctrine to intertidal lands beyond the narrow
interpretation of the Moody Beach Case.

Continue implementation of the Right-of-Way Discovery
Project by defraying expenses of local documentation
efforts.

Convene periodic access workshops with towns, non-
profits and other entities to address coastal access
issues.

Legally reassert the traditional rights of the public
along the shorefront of the towns of Brunswick,
Freeport, Yarmouth, and Cumberland. A 1727 North
Yarmouth colonial ordinance was recently rediscovered
that set aside an upland shorefront path, about 50-feet
wide, from the Royal River to the Cumberland-Falmouth
border and designated the area between the high and low
tide mark as a public commons.

Incorporate the Submerged Lands law as a core law of
the Maine Coastal Program.

Amend the model state Shoreland Zoning Ordinance to
include guidance and language for consideration of
physical and scenic access in permit review decisions
more specific.

Encourage municipalities to develop public access plan
addenda to their comprehensive plans.

3.5 Federal CZMA Programmatic Oblective II -- Funding &
Acquisition of Coastal Access Sites

Acquire, improve, and maintain public access sites to meet
current and future demand through the use of innovative funding
and acquisition-techniques.

o Develop and enhance a unified state process for funding
acquisition, improvement, and maintenance of coastal
public access sites.

Assess impact fees and utilize special assessments,
bond issues, and other techniques.
Assess user fees and other techniques, where
appropriate.

o Coordinate with other state and federal agencies that
provide funds related to the provision of public access
to insure that highest priority sites are acquired,
improved, and maintained.

o Coordinate with other public and private entities that
own or manage shoreline areas in order to meet the needs
for public access.

Encourage cooperative efforts between land trust
organizations and government agencies providing funds

for acquisition of public access sites.

Coordinate with the National Flood Insurance Program
to acquire property that has been damaged by natural
hazards and is unsuitable for rebuilding.

Encourage the utilization of surplus public.
properties, abandoned railroad corridors, and other
opportunities to help meet needs for shoreline public
.access.

o Develop or enhance programs to encourage landowners to
dedicate property and easements for public access.

3.51 Existing Programs

a. Scope

Public Facilities for Boats Program - Administered by the
Department of Conservation/ Bureau of Parks and Recreation, the
program maintains 35 coastal launching facilities and acquires
new sites with revenue from the Boating Facilities Fund. The fund
annually receives a portion (approximately 1 percent) of the
state gasoline tax that is paid by non-highway users of fuel.

Waterfront Access Grant Program - Administered by the
Department of Economic and Community Development/ Office of
Comprehensive Planning, the Waterfront Access Grant Program is
funded through the Maine Coastal Program with federal funds. The
program provides matching grants on a competitive basis to
communities for acquisition and improvement of public access
sites. This program requires all sites and approach roads to be
posted with standard Shore Access signage.

Wallop-Breaux Fund Administered by the Department of
inland Fisheries and Wildlife, Wallop-Breaux monies are used to
acquire c'oastal lands for habitat protection and recreational
access. monies from the federal fuel tax are allocated to the
4 fund.

Land For Maine's Future Program - Established in November
A 1988 with a voter-approved bond issue, LMFB has acquired over
3,553 acres of coastal property with more than 16 miles of
combined shore frontage. The Land for Maine's Future Program is
administered by the Natural Resource Policy Division of the State
Planning Office. The original funds allocated for land
acquisition by LMFB are nearly spent. Maine voters will vote on a
referendum to replenish funding with a five million dollar bond
issue this November (1991).

Land and Water Conservation Fund (LAWCON) - Administered by
the Department of Economic and Community Development/ Office of

Comprehensive Planning, LAWCON has played a major role in
funding access acquisitions along the coast and inland. Revenue
for the fund comes from fees paid by offshore oil well leases to
the federal government. The National Park Service disperses the
funds to the states annually. Maine's annual share has ranged
from a high of 3.2 million to recent funding levels of
approximately 165,000 dollars.

Recently' LAWC ON funds were used to help develop beach
facilities at Sandy Point Beach, acquired in the coastal town of
Stockton Springs under the Land for Maine's Future Board Program.
This is a good example of the use of multiple funding sources for
access projects where individual sources are insufficient by
themselves. Some cooperative projects involving LAWCON, Coastal
and Community Development Block Grant (CDBG) sources include the
Belfast waterfront improvements, the Augusta Waterfront Park, and
the Gardiner Landing.

Shoreline Access Protection Fund - This account was never
funded, since a bond issue, to be used to finance the fund, was
defeated by Maine voters in 1986.

Non-profit Conservation Organizations - Conservation
organizations including Maine Coast Heritage Trust, National
Audubon Society, Maine Audubon, The Nature Conservancy, Island
Institute, local land trusts and municipalities are actively
acquiring easements or property on coastal lands for conservation
and public access enhancement purposes.

b. Effectiveness

The Waterfront Action Grant (WAG) Program has successfully
promoted access initiatives at the local level, as indicated by
the descriptions of funded projects available from the Office of
Comprehensive Planning in the Dept. of Economic and Community
Development, and by the interest in new grants. Limited funding
by the Maine Coastal Program is the primary constraint on the
program; no funds were available in 1991. Reactivation of the
WAG program will require raising its priority in relation to
other State uses of CZMA funds, and depend on overall federal
CZMA funding levels.

There is coordination among state agencies acquiring and
managing lands. The Land for Maine's Future Board's strategies
and guidelines for acquisition (LMFB, 1990) were developed in
cooperation with the Departments of Agriculture, Food and Rural
Resources, Conservation, Economic and Community Development,
Inland Fisheries and Wildlife, Transportation and the State
Planning Office and with input from private conservation groups
in the state.

Scarcity of funding and soaring land costs limit the extent

of coastal land purchases for public access and other purposes.
Private conservation organizations and state agencies are
employing options to fee-simple land acquisitions such as
purchase of development rights and conservation easements. Recent
slow real estate market conditions have allowed the purchase of
several large waterfront parcels by LMFB and other groups at
reasonable costs. .

3.52 Options for Improvement

Explore alternative sources of funding to support land
acquisitions and public access facility repair at the
state and local levels.

Develop tax incentives and other tools needed to
facilitate the transfer of easements, development
rights and right-of-ways from private landowners to the
public while protecting the revenue base of coastal
communities.

Fund and support local research into historic right-of-
ways to the coast.

Publish a coastal access guide to inform people of
coastal access locations and the range of access
possibilities.

Fund and provide technical assistance to towns for the
development of harbor olans which.establish priorities
for the use of harbor waters and waterfront.

The Maine Coastal Program should convene a workshop to
discuss access needs, current programs and ways to
improve them such as, how to strengthen existing
public/ private partnerships to improve access.
Participants in the workshop should include all access
program managers, individuals active in land
conservation, selected municipal leaders and the
public.

Restore Waterfront Action Grants and raise their
priority for Coastal Program funding. Seek federal
approval for a ceiling higher than $50,000 on
Waterfront Action Grants to reflect costs of coastal
access acquisition and development more realistically.

Investigate alternative funding for the Shoreline
Access Protection Fund.

Facilitate cooperation betwe en municipalities and State
and national parks to ensure consistency with local
plans.

Ensure that Maine ports and harbors continue to be open
to all on an equal basis regardless of residency.

Establish a single State point of contact to provide
coordination for public access issues.

3.53 Baseline for Measuring Progress

Specific objectives for improving the quantity and quality
of access sites along the coast need to be developed. These
objectives would be established once a rigorous process for
evaluating current access needs is developed and implemented.

3.6 Federal CZMA Programmatic Oblective III -- Coastal Access
Plan

Develop or enhance a Coastal Public Access Management Plan which
takes into account the provision of public access to all users of
coastal areas of recreational, historical, aesthetic, ecological,
and cultural value. The plan should have adequate
implementation mechanisms and include sections that:

Develop or'update public access inventory, maps of and guide
.to all existing and potential public access sites.

Identify site selection and design criteria, management, and
maintenance issues for each type of public access.

Assess current and future demand for public access.

Incorporate pertinent sections of the State Comprehensive
Outdoor Recreation Plan into the Coastal Public Access
Management Plan.

Update andlor designate public access sites as Areas of
Particular Concern, Areas for Preservation or Restoration,
or special management areas.

Ensure that signage is provided for all public access sites.

Ensure that all users of the coast, including handicapped
individuals, are afforded the same public access
opportunities.

Increase community support and cooperation through public
education and involvement.

Incorporate existing public access policies.

3.61 Existing Coastal Access Plans

a. Scope

To date the only coastal access management plan is the
"State Comprehensive Outdoor Recreation Plan (SCORP)(BPR, 1988)
which summarizes access needs and information for the coastal
planning regions. In addition, the Maine Island Trail Association
and the Bureau of Public Lands have prepared plans that respond
to priority coastal island issues including coastal access.

b. Effectiveness

The SCORP is reasonably effective in identifying and
analyzing coastal access issues. Improvements in the Plan would
be possible if additional funding were made available for access
planning.

3.62 Options for Improvement

The Maine Coastal Program should work with the SCORP
steering committee planning the 1993 SCORP to include @a
coastal section emphasizing coastal specific access
issues.

Develop a 10-year coastal plan that all coastal towns
and interested federal and State agencies can agree to.

Establish goals for each type of public access
facilities in each planning region or section of coast.
Work with municipalities to incorporate these goals
into public access sections of their comprehensive
plans.

3.7 Federal CZMA Programmatic Oblective IV -- Minimizing Adverse
Impacts of Public Access

minimize potential adverse impacts of public access on coastal.
resources and private property rights through appropriate
protection measures.

A a. Balance the provision of public access in meeting current
and future demand with the protection of environmentally-
sensitive areas and other natural resources.

o Develop a system to evaluate the environmental
sensitivity and amount of use of existing and proposed
access sites.

o Provide for periodic site inspections to assess the
impact of public access use on the surrounding ecosystem.

o Provide for alternatives such as visual access to protect
sensitive coastal areas.

b. Safeguard the rights of private property owners who dedicate
property for public use, and those of adjacent property owners.

� Encourage the adoption of a limited liability provision
for property owners who donate property or easements.

� Provide for the security and maintenance of public
accessways on or adjacent to private property.

3.71 Existing Laws, Regulations, Programs

a. Scope

Liability -- The Maine Tort Claims Act (MCTA) limits the
liability of the state of Maine and municipalities with respect
to use of public recreational facilities. 14 M.R..S.A.159-A
(Statutory Liability Limitation) limits liability of private
landowners that allow the public to access their land. The
"Limited Liability for Recreational or Harvesting Activities"
provides that a landowner does not have to protect a person who
enters his or her land for recreational or harvesting purposes
from in'Jury.

The DECD distributes inforffiation on public access including
a booklet which deals with the liability issue. In addition, the
Marine Law Institute (1990) publishes a brochure "Protection
against Liability for -Landowners who Allow Public Access"
discussing laws protecting private property owners from
liability,

Environmental Impacts -- Fragile coastal environments are
threatened by the increasing numbers of people drawn to the
coast. The Natural Resource Protection Act (NRPA) prohibits
development that impacts sea bird nesting sites, bald eagle
nests, certain wetlands of high value and other natural areas of
significance. many small developments and public access
activities are not regulated by NRPA. Managers in the resource
agencies that manage public lands along the coast design
appropriate conservation plans for the sites including
appropriate types of public access. Several private conservation
organizations promote visitation to certain sites that do not
disturb the wildlife or habitat. Coastal islands, in particular,
are very vulnerable to human disturbance.

b. Effectiveness

Existing laws and programs rarely address the potential
adverse impacts of increased access on coastal resources. Impacts
from public access are considered after the effects are noticed

and are seldom anticipated in state and local permitting
processes.

3.72 Options for Improvement

Ecotourism, tourism which minimally impacts the
environment, should be promoted and facilities
developed to encourage this type of coastal use.

The MCP should work with other agencies (and non-profit
groups) that design access opportunities to pursue
development of low-impact access sites such as
greenways that would be different from the traditional
(high impact) drive-up sites with boat ramps and
camping services.

Tourism carrying capacity studies should be conducted
that would include the quality of the visiting
experience and the environmental impact of tourism on
sites being visited.

As part of the 10-year Coastal Plan, state agencies
,should work cooperatively to develop a physical and
visual access plan for Route 1 (as Pacific States have
done) that seeks to preserve the Water views and scenic
vistas, as well as relieve automobile congestion. This
activity should be consistent with local comprehensive
plans approved by the DECD. The use of zoning should be
considered for maintaining views from Route 1, other
State highways and town roads.

3.8 Available Information/Studies

Bureau of Parks and Recreation, 1988. "State Comprehensive
Outdoor Recreation Plan (SCORP)," Volume I, Assessments and
Policy Plan, Bureau of Parks and Recreation, Maine Department of
Conservation, Augusta, ME.

Burrows, T.R. and E. Paine, 1989. "Maine Shore Access,
Public Access@Series: Liability", Marine Law Institute for the
Department of Economic and Community Development, Office of
Comprehensive
Planning, Augusta, ME.

Dawson, M., 1990. "Coastal Public Access in Maine," Maine
State Planning Office, Augusta, ME.

Land for Maine's Future Board, 1990,revised. "Land for
Maine's Future Fund, Starategy and Guidelines for Acquisition,"
,A State Planning Office, Augusta, ME.

Maine Office of Comprehensive Planning, 1990. Public Access
Handbook Series: Liability; Coastal Right-of-Way Rediscovery
Programs; and How to Conduct a Inventory of Scenic Areas. Maine
Department of Economic and Community Development, Augusta, ME

Maine State Planning Office, 1986. "Public Access to the
Maine Coast," Maine State Planning Office, Augusta, ME.

Marine Law Institute (MLI), 1991. "Protection Against
Liability for Landowners Who Allow Public Access,"Marine Law
Institute, Sea Grant Marine Advisory program, University of maine
Orono, ME.

Marine Law Institute, 1989. "Coastal Right-of-Way Discovery
Project, Summary of Results of Research by Town", Marine Law
Institute, Portland, ME.

Sasaki Associates, 1990. "Planning Study of Maine Coastal
Port and Harbor Needs," Me. State Planning Office, Me. Dept. of
Transportation, Augusta, ME.

Section 309 Assessment

4. COASTAL HAZARDS

Advisory Committee: Marine Policy Committee

Agency Contacts

Joe Kelley, Steve Dickson - Maine Geological Survey/DOC
Rob Elder - Port Division/ DOT
John DelVecchio - Hazard Mitigation Officer/ DECD
Louis Sidell Floodplain Management Program/ DECD
Erik Carson Office of Comprehensive Planning/ DECD
Lynn Taylor Maine Emergency Management'Agency (MEMA)
Rich Baker Shoreland Zoning Program/ DEP

Public Interest Contacts

Natural Resource Council of Maine
Maine Municipal Association-
Maine Audubon Society

Coastal Hazards

CONTENTS

4.0 SUMMARY

4.1 Maine's Key Coastal Management Policies

4.2 Federal CZMA Legislative Objective

4.3 Federal CZMA Assessment Characterization

4.31 Scope & Definitions
4.32 Available Information/Studies
4.33 Assessment of Problems & Issues
a. Sea Level Rise
b. Coastal Erosion
c. Coastal Flooding & Storm Surge
d. Hurricanes & "Norleasters"
e. Subsidence
f. Earthquakes

4.4 Federal CZMA Programmatic Objective I -- Direct Development
Away From Hazard Areas

4.41 Existing Laws, Regulations & Programs
4.42 Options for Improvement

4.5 Federal CZMA Programmatic Objective II -- Protective
Functions of Natural Shoreline Features

4.51 Existing Laws, Regulations and Programs
4.52 Options for Improvement

4.6 Federal CZMA Programmatic Objective III -- Prevent or
Minimize Threats to Populations & Property

4.61 Existing Laws, Regulations & Programs
4.62 Options for Improvement

4.7 Available Information/ Studies

[jr.haz] 1/14/92

4.0 SUMMARY

Beach and bluff erosion, riverine flooding, sea level rise,
land subsidence, hurricanes, norleasters, ocean storms, and
earthquakes are natural hazards of the Maine coast. Of these,
hurricanes and norleasters (and the associated flooding, erosion,
and storm surge) occur most frequently.

Sea level is rising along the coast at a rate of
approximately one foot per century and is expected to accelerate
in coming decades. The predicted future rise in sea level will
eventually flood some Maine coastal communities and port
facilities.

Accomplishments

The Sand Dune Rules of Maine's Natural Resource Protection
Act (NRPA) are some of the strictest in the country. The
rules prohibit development seaward of a frontal dune and
include standards for construction techniques and coverage
by development. Maps of hazard areas in sand dunes are
available from the Maine Geological Survey.

State Mandatory Shoreland Zoning Guidelines detail minimum
setbacks and erosion control measures that must be included
in local shoreland zoning ordinances. Under the guidelines,
floodplains, areas of steep slopes and other hazard areas
are to be designated as Resource Protection Districts which
prohibit significant new construction.

The Maine Floodplain Management Program, administered by the
Department of Economic and Community Development, assists
communities with floodplain ordinances, mapping and
planning.
'A Thirty-two beaches along the Maine coast areas are
designated as coastal barrier resources, a designation that
ensures that no state funds or state financial assistance
will be expended to develop these areas. In addition, 12
areas are identified as geologically unstable and federal
funds cannot be used to support development in these areas.

Problems

4 Continued development'and alteration of the shoreline
threatens the natural protective features of unaltered
shorefronts and risks loss of public and private property.

Basic information on coastal erosion rates and other natural
shoreline processes is needed in order to design effective
and progressive programs that limit development, protect
private property, and'conserve protective coastal features
and natural habitats in areas prone to coastal hazards.

The predicted rise of sea level along the Maine coast has

tremendous implications for private property owners and
managers of public lands and port facilities.

Existing federal and state regulations allow reconstruction
of structures after coastal hazard events in certain
circumstances.

There is a lack of adequate funding for field checks of
activities permitted by the Department of Environmental
Protection and local code enforcement officers.

Inadequate enforcement of shoreland zoning provisions in
some communities stems from a lack in understanding of the
rationale and need for shoreland zoning.

4.1 Maine's Key Coastal Management Policies
Applicable to Coastal Hazards (38 MRSA 1801)

HAZARD AREA DEVELOPMENT. Discourage growth and
new development in coastal areas where, because of
coastal storms, flooding, landslides or sea-level rise,
it is hazardous to human health and safety.

PORT AND HARBOR DEVELOPMENT. Promote the
maintenance, development and revitalization of the
State's ports and harbors for fishing, transportation
and recreation.

4.2 Federal CZMA Legislative Oblective

� 309(a)(2) Preventing or significantly reducing threats to life
and destruction of property by eliminating development and
redevelopment in high hazard areas, managing development in other
hazard areas, and anticipating and managing the effects of
potential sea level rise and Great Lakes level rise.'

4.3 Federal CZMA Assessment Characterization

Characterize the extent to which the coastal zone is at risk from
the following coastal hazards: hurricanes, flooding, storm surge,
episodic and chronic erosion, sea and Great Lakes level rise,
subsidence, earthquakes, tsunamis, and any other significant
coastal hazards.

4.31 Scope & Definitions

Coastal hazards common to the Maine coast include shore and
bluff erosion, riverine flooding, sea level rise, land
subsidence, hurricanes and "norleasters" (and attendant storm
surge), and earthquakes. Forest fires are a particular concern
on wooded islands and coastal peninsulas, and caused disasters
this century on Mt..Desert Island and Monhegan Island. Fires,
however, are outside the scope of this assessment.

In Maine, coastal hazard area development includes
development in river flood plains, on sand dunes, and in areas
subject to storm surge and coastal erosion.

4.32 Available Information & Studies

The State of Maine Hazard Mitigation Plan (Maine Emergency
Management Agency, 1988) reviews the history of nat@iral disasters
in Maine. Hazards assessed in the plan include dam failure,
earthquake, flood, hurricane, and forest fire. The mitigation
plan proposes measures designed to reduce disaster damage.

Hazard areas in sand dunes are mapped by the Maine
Geological Survey (MGS) to provide information on the location of
flood hazard zones and front and back dunes. The National Flood
Insurance Program identifies areas vulnerable to flooding and
storm surge.

4.33 Assessment of Problems & Issues

a. Sea Level Rise

At the present time, sea level is rising along the
Maine coast at a rate of approximately one foot per century, in
part due to local subsidence of the coast. The Maine Geological

Italicized text is excerpted from federal guidance for the
309 assessments.

Survey (1989) estimates that global warming trends may accelerate
the rise, resulting in a net sea level rise of 20 to 50 inches
along the Maine coast by 2090.

As sea level rises, new areas of coastline will be subject
to flooding and other coastal hazards. Present-day marsh,
environments and other edge habitats will persist only if they
can migrate landward. Coastal ecosystems, already fragmented by
development, will be further threatened by sea level rise. In
response to environmental and physical changes, the biodiversity
of coastal ecosystems will change and perhaps diminish.
Saltwater will intrude upon coastal groundwater supplies and
sedimentation of harbors and basins will increase as coastal
@rosion rates increase (MGS 1989). When salinity regimes change
in estuaries, and current and sedimentation patterns shift from
the rise in sea level, other effects on coastal ecosystems will'
become apparent.

The Maine Department of Transportation is concerned that the
existing marine infrastructure of docks, piers and port
facilities may be threatened by changes in sea level.

b. Coastal Erosion

Slumping bluffs and eroding dunes continually cause
incidents of property damage and loss along the coast. Beach
erosion events at Popham Beach in Phippsburg, and Camp Ellis in
Saco toppled several homes in the past few years. Local
landslides and ilumping of bluffs in Rockland and Cutler
periodically cause property loss. Only a few of Maine's beaches
and shore areas have been profiled over time to determine erosion
rates.

The Maine Geological Survey (MGS) and the Office of
Comprehensive Planning (OCP), estimate that several hundred
houses are in areas subject to damage from coastal storms in
southern and mid-coastal Maine. Approximately 30 of the houses
are located along Higgins Beach in Scarborough, another 52 in
@amp Ellis,-and the others scattered along the York County coast
in areas of Ocean Park, Fortune Rock and Drake's Island.

Coastal depositional landforms--sand dunes, beaches, and
A bars--protect inland areas from erosion by buffering wave and
wind action, and contribute to the dynamic flow of sediment
between near- and off-shore environments. Marshes and sea grass
meadows slow wave action and cause sediments to settle out,
thereby replenishing near-shore intertidal environments. Beach
grass and other shoreline vegetation buffer wave action, retain
sediments and aid in stabilization of coastal landforms. Marshes
along coves and tidal rivers reduce flooding by absorbing and
slowly releasing flood waters.

.4 Protective functions of natural coastal features are
threatened by shoreline development, inappropriate stabilization
of the shoreiine, and dredging. Seawalls and artificial shore

stabilization measures alter natural sediment transport and
dissipation of wave energy. As waves hit a seawall, the energy
is dissipated down as well as up, thus scouring the toe of the
wall, resulting in the necessity for continued maintenance and
future construction of a larger structure and ensuring the
complete erosion of the beach. For this reason, construction and
repair of seawalls is generally prohibited by the Department of
Environmental Protection. Shore stabilization measures inhibit
the landward migration of barrier features, marshes and flats in
response to gradual rises in sea level.

c. Coastal Flooding & Storm Surge

Coastal flooding events are related to combinations of high
tides and storm surge. Spring tides, during full and new moons,
can raise ocean levels 3-4 feet above mean high water. Base
Flood Elevations vary along the coast and run as high as 44 feet
in eastern Maine. Base Flood Elevations, stillwater plus storm
surge elevations, have been established for areas along the coast
subject to storm surge and coastal flooding.

The Federal Emergency Management Agency (FEMA) has mapped
and identified areas at risk from storm surge and coastal
flooding. The most vulnerable coastal areas are beaches', dunes,
coastal bluffs, and glcicial till headlands; the least vulnerable
are rocky headlands and sheltered coves (MEMA 1987). The
prevalence of vulnerable landforms and high population density
make the southern coast and mid-coast regions the most
susceptible to severe storms and surges. In January and February
1978, coastal flooding from two "northeasters" back to back with
storm surges of 5 feet caused more than 16 million dollars in
property damage in York County.

Coastal and riverine floodplains are mapped on Flood
Insurance Rate Maps (FIRMs). Storm surge is typically a
secondary cause of coastal flooding. Riverine flooding is
usually caused by sudden rainfall events.

Riverine flooding typically occurs every spring, causing
damage when excessive rainfall combines with snow melt to flood
river drainages. Three conditions determine the vulnerability of
river basins to flooding--the extent of drainage area, the river
gradient, and the extent of development along the floodplain of
the river (MEMA, 1988). In the spring of 1987, heavy rainfall
added to snow pack melt resulted in severe flooding along many
coastal rivers, and in particular, along the Kennebec River in
mid-coast Maine. The Kennebec and Androscoggin are the most
vulnerable Maine rivers to flooding (MEMA, 1988).

Riverine flooding effects a variety of coastal resources
such as shellfish beds, public water supplies, and waterfront
structures. Above-ground oil storage tanks, industrial
facilities, or waste water treatment plants, can pollute and
destroy habitat in down-stream shellfish areas if severely
damaged by flooding or subsidence.

d. Hurricanes and "Norleasters"

The hurricane season in Maine usually starts in September,
although Hurricane "Bob" hit the coast in mid-August 1991.
Hurricanes originate in the tropics, travel up the eastern
seaboard, and often are diminished in force by the time they
reach Maine waters. Nevertheless, the entire Maine coast is
vulnerable to the primary and secondary effects of hurricanes.
Southern coastal areas have a greater density of development
subject to damage; the downeast coast is subject to potentially
greater storm intensity.

"Norleasters" generally start in the Gulf of Mexico or off
the Atlantic coast in the fall or winter and move northeast,
reaching their greatest intensity in the New England area. Storm
surge from these storms can increase tidal water levels from 1 to
3 feet. Significant coastal.storms occurred during recent
winters of 1977, 1978, 1980, 1985, 1987, 1990, 1991. A
"souleaster" in the winter of 1978 produced a storm surge that
reached levels of a 100-year storm. Hurricanes and coastal
storms can cause coastal flooding, erosion of shorelands,
property and infrastructure damage from wind and water, as well
as disruption of electricity and other services.

e. Subsidence

Subsidence along the Maine coast is a natural event caused
by downwarping of the earth's crust. Varying degrees of
subsidence along the coast are partially responsible for
variations in the relative 3ea-level rise. Problems associated
with subsidence are the same as those associated with sea-level
rise.

f. Earthquakes

Maine regularly experiences measurable earthquakes. To date,
due to their location in sparsely populated areas, earthquakes in
Maine have caused minimal damage; however, earthquakes may
trigger landslides at coastal bluff locations, and a quake with
an epicenter in a heavily settled metropolitan area could result
in significant damage.

4.4 Federal CZMA Programmatic Objective I Direct Development
Away From Hazard Areas

Direct future public and private development and redevelopment
away from hazardous areas, including the high hazard areas
delineated as FEMA V-zones and areas vulnerable to inundation
from sea and Great Lakes level rise.

* Develop or enhance programs that identify and restrict
development in areas that are unsuitable for development or
redevelopment, including programs which:

-- Establish state and local policies that eliminate
development and redevelopment in high hazard areas and
manage development in other areas either directly or
indirectly.

-- Establish or improve programs/policies for the siting of
structures away from hazardous areas after a storm.

-- Restrict the use of public funds for infrastructure or
other projects that would allow or encourage development in
high hazard or hazardous areas.

4.41 Existing Laws, Regulations & Programs

a. scope

Coastal Barrier Resources System (38 MRSA � 1901-1904)
The U.S. Coastal Barriers Resource Act (COBRA) prohibits federal
assistance or expenditures for development activities within a
designated system of coastal barriers. Paralleling the federal
COBRA, Maine law provides that no state funds or state financial
assistance may be expended for development activities within
thirty-two of these designated coastal barriers.

Natural Resource Protection Act (NRPA)(38 MRSA � 480-A
480-S)' -- The NRPA requires a permit for any structure in, on,
adjacent to, or over a water body. The Sand Dune Rules (Ch. 355,
48OA-480U), address siting of structures in sand dune areas
identified as vulnerable to storm damage. The Rules prohibit
construction on or seaward of a frontal dune or in the V-zone Ikk
(areas subject to wave action or a one percent or greater chance
of flooding in any given year). Development is not allowed to
cover more than 40% of the surface area of the lot, and buildings
may not cover more than 20% of the lot. Projects which are likely
to be damaged from changes in the shoreline within 100 years will
not be permitted.

The lowest structural member of a single family residential
structure must be at least one-foot above the 100-year flood
elevation, or four feet in the case of a multi-family dwelling.
A building damaged by more than 50% cannot be rebuilt.

The rules also prohibit construction of new seawalls and
require removal of structures that have been encroached on by
wetlands for at least six months. Building standards include
windproofing requirements and are outlined in the Sand Dune Rules
aa well as detailed in the "Coastal Construction Manual"
available from the Maine Department of Economic and Community
Development.

Certain activities are exempt from the Sand Dune Law, such
as construction of temporary structures; construction of walkways
and paths across lawn or areas filled with non-sandy material;
maintenance and repair of septic systems; roads and driveways;
building repair (as long as the damage does not exceed 50% of the
building value); open fences; and seawalls, if the work is done
with hand tools, the dimensions of the seawall are not increased
and if the building behind the seawall sustains damage of more
than 50% in a ocean storm.

Floodplain Management Program -- The National Flood
Insurance Program (NFIP) is a partnership between federal, state
and local governments to control development in flood hazard
areas. The Maine Floodplain Management Program is administered
through the Department of Economic and Community Development by
the Office of Comprehensive Planning. The State Flood Insurance
Coordinator assists communities with developing, administering,
and enforcing floodplain management ordinances and review of
maps, as well as flood mitigation planning.

Another facet of the National Flood Insurance Program is the
"Upton-Jones" amendment, which provides that for structures that
are subject to "imminent" collapse, the NFIP will pay either 40%
of the damage claim for relocation, or 110% of the value of the
structure for demolition and debris removal. Under the program,
the owner retains ownership of the property. To date, Maine does
not participate in the state certification portion of the Upton-
Jones provisions. To do so, the state must develop a coastal
erosion rate data base.

Flood Plain Ordinances -- In order for a community to
participate in the NFIP, floodplain management ordinances must be
passed and administered in areas subject to riverine or coastal
flooding. Most towns have adopted ordinances based on a state
model floodplain ordinance that is more stringent than the
federally mandated requirements. In addition to the federal
standards, the state model ordinance requires that all new or
significantly improved structures be elevated at least one-foot
above the base flood elevation, with the burden of compliance
placed on the applicant. An inspection by the Code Enforcement
Officer of the community is required when the lowest floor is
completed to insure compliance. Flood Insurance Studies in most
coastal communities map areas at risk from storm surge, flooding
and other coastal hazards and establish Base Flood Elevations
(stillwater elevation plus storm surge).

Mandatory Shoreland Zoning (38 MRSA � 435-446) -- This law
requires municipalities to adopt Shoreland Zoning Ordinances for
areas within 75 feet of streams and 250 feet of other water
bodies. Ordinances must comply with minimum standards
established by Department of Environmental Protection Guidelines.
A Shoreland Zoning Coordinator in the Department of Environmental
Protection assists communities with ordinance development.

State "Guidelines for Municipal Shoreland Zoning Ordinances'
require all new principal and accessory structures to have a
mandatory 100-foot setback from the normal high-water line of
great ponds and rivers which flow to great ponds, and a 75-foot
setback from the normal high-water line of salt-water bodies,
rivers, tributary streams, and the upland edge of wetlands.

In designated "Resource Protection Districts," no
significant new construction is permitted. These districts
include flood plains; areas with two or more contiguous acres
with sustained slopes of 20% or greater; and lands subject to
either severe bank erosion or mass movement which are adjacent to
moderate or high value wetlands, rivers and tidal waters.

For existing non-conforming structures, if any portion of
the structure is less than the required setback, that portion of
the structure cannot be expanded in floor area or volume by 30%
or more. Construction or enlargement of the foundation can occur
provided that the setback requirement is met to the fullest
extent possible, as determined by the local Planning Board.

Existing structures that are damaged by more than 50% of the
market value 'may be reconstructed provided a permit is obtained
within one year of the date of damage, again provided the M
reconstruction or replacement is in compliance with the required
setback to the greatest practical extent, as determined by the
local Planning Board.

Local Code Enforcement Officer Training and Certification
Program -- The Department of Economic and Community Development
provides training and technical assistance for code enforcement
officers responsible for enforcing local shoreland zoning and
floodplain ordinances.

Coastal Erosion Database -- The Office of Comprehensive
Planning and the Maine Geological Survey have initiated a program
to establish erosion rates on coastal sand beaches. Maine
Geological Survey publishes sand dune maps and distributes
information on areas subject to coastal erosion and sea level
rise.

Emergency Planning -- The Maine Emergency Management Agency
(MEMA) offers guidance in the development of local emergency
plans for communities and counties, and conducts hazard awareness
workshops. MEMA also operates a disaster communications network
to plan for and coordinate the State's response to and recovery
from disasters.

b. Effectiveness

There are several obstacles to controlling development in
areas subject to coastal hazards. The first is a provision in
the Sand Dune Rules that allows for a private appraisal of the
amount of damage to a structure by storm event. By making an
subjective assessment of damage, a homeowner may be able to avoid
the requirement of a building permit for reconstruction work by
claiming that the work is maintenance or repair costing less than
50% of building's value. Unless State enforcement staff were
familiar with the building before the event, a questionable
assessment may go unchallenged.

The provision in the Rules which allows restoration of non-
conforming structures within a frontal dune, prolong the
effective lifetimes of poorly-sited structures. Lack of data to
forecast long-term shoreline movement due to sea level rise,
erosion and accretion further hamper effective implementation of
the Sand Dune Rules as well as local shoreland ordinance
setbacks.

One of the limitations of the "Upton-Jones" provision of the
NFIP is the requirement that property be insured for two years
prior to making a claim. The largest obstacle to effective use
of this provision is that involvement in the National Flood
Insurance Program is voluntary. Thus, efforts to relocate
unsafe structures in communities with areas of severe hazards
(such as Camp Ellis) are limited by the number of structures and
properties which have flood insurance, and thus are eligible to
participate in the Upton-Jones portion of the program. In
addition, certain areas of the coast will not be able to benefit
from the acquisition portion of the NFIP due to severe erosion
and the Federal government's unwillingness to buy intertidal
land.

Another deficiency in the National Flood Insurance Program
(NFIP) is the lack of construction prohibitions in areas other
than those designated "V" or I'AO" zones (areas most susceptible
to direct damage from coastal storm events). In these zones,
construction is required under State Sand Dune Rules to meet
certain minimum standards designed to reduce potential flood
hazards, but which are barely adequate to protect structures. For
instance, the lowest structural member of a single family
structure must be only one foot above "base flood elevation"
(BFE); multi-family structures need be only four feet above BFE.
'A Structures are allowed to be built (with Flood Insurance Program
coverage) in areas subject to either wave action or flooding.

Shoreland zoning setbacks deter, but may not prevent
construction or inappropriate land use in high hazard areas. The
minimum setback of 751 may not be an effective setback given the
typical life span of a structure in erosion-prone areas. For
example, a structure with a life span of 90 years will be
protected for only 75 years if the average erosion rate is one
foot per year, or less if the erosion rate increases overtime.

Adherence to shoreland zoning minimum setbacks may not provide
long term protection for structures located in high hazard areas,
especially with the inevitability of sea level rise.

Shoreland zoning ordinances are enforced at the local level
with varying amounts of diligence depending on the local
political will. Often guidelines limiting removal of trees and
vegetation within the minimum 75-foot setback are not enforced
and violations are noted only after it is too late. Removal of
natural vegetation may promote erosion on steep slopes and
bluffs, yet the state guidelines do not apply more stringent
rules to erosion-prone areas.

A major obstacle to controlling development in areas subject
to coastal hazards is the lack of sufficient data to support
setbacks more stringent than currently legislated. DEP, MGS and
OCP recently began developing an erosion rate data base, both
pursuant to the requirements for state certification under the
"Upton-Jones" amendment, and as the scientific basis for more
realistic setbacks based upon identifiable erosion rates.

4.42 Options for Improvement

Modify provisions of the Natural Resource Protection
Act rules that allow the placement of rip-rap on the
shore and other erosion-prevention measures to include
requirements for consideration of the cumulative effect
of minor modifications to the shoreline over time.

Incorporate erosion rate projections in shoreland
zoning setbacks to adjust for shoreland erosion and sea
level rise during the lifetime of a proposed structure
in the state model shoreland zoning guidelines and
local ordinances.

Identify high hazard areas that are at risk for
development and appropriate for public acquisition.

4.5 Federal CZMA Programmatic Oblective II -- Protective
Functions of Natural Shoreline Features

Preserve and restore the protective functions of natural
shoreline features, such as beaches, dunes and wetlands.

a. Minimize the degradation or destruction of natural
shoreline protective features.

-- Conserve natural protective features through
acquisition, condemnation, and other means.

-- Regulate public and private activities that impair
the function of natural protective features including
restrictions on erosion control structures, building
setbacks from beaches, dunes, wetlands, and other
protective features.

Control development adjacent to natural protect ive
features to minimize the adverse effects of such
development on the natural features and the processes
that enhance those features.

b. Enhance the protective function of natural shoreline
features.

Reduce impediments to natural sediment transport.

Encourage plantings, dune fencing, and other
efforts to stabilize features.

Provide for comprehensive renourishment of the
beach and dune where appropriate.

Develop and implement state-wide renourishment
planning, including developing long-term and
predictable funding mechanisms and methods to establish
project priorities.

4.51 Existing Laws, Regulations & Programs

a. Scope

Seawall Construction & Repair Policy in the Coastal Sand
Dune Rules -- The Board of Environmental Protection has adopted a
policy of 'presumed mobility' that guides against construction of
new bulkheads and seawalls. Coastal wetland permits are granted
only if the proposed development will not unreasonably interfere
with natural sand and water flow or wildlife habitat. Buildings
over 2500 square feet are permitted in sand dunes only if they
are outside an area flooded by a 3-foot rise in sea level. Beach
nourishment is acceptable provided that sand budgets, grain size,

public benefit and costs are thoroughly examined. The Sand Dune
Rules also prohibit repair of seawalls after storm damage.

State Coastal Barriers Resources System -- See discussion
under 4.41.

Shoreland Zoning Guidelines -- State mandatory guidelines
limit removal of natural vegetation within required setback
areas. See discussion under 4.41.

Local Revegetation Efforts -- Old Orchard Beach, through the
use of a Waterfront Action Grant from the Office of Comprehensive
Planning, replanted grasses in dune areas in an effort to
stabilize and rebuild the dune system.

b. Effectiveness

The unavailability of Waterfront Action Grant monies for at
least the 1991-1992 fiscal year effectively puts an end to beach
and dune restoration projects funded by the Maine Coastal
Program. When this money is restored, projects such as the Old
Orchard Beach Revegetation Project (which successfully protected
the beach environment and, in so doing, educated the citizenry
about the importance of sand dune systems as a whole) can be
continued and expanded.

4.52 Options for Improvement

Promote natural vegetation restoration and protection
projects in communities with sand dunes, coastal
bluffs, and other areas prone to erosion. Develop
technical assistance materials for shorefront property
owners.

Map projected changes in sea level on the Maine 0
coastline as a first step in evaluating the impacts of
sea level rise on coastal communities and ecosystems.
Track and determine coastal erosion rates with aerial
photography and other techniques.

Develop and maintain a coastal erosion rate data base
on the state Geographical Information System (GIS) in
order to assist with permitting decisions.
Develop and maintain a coastal erosion rate data base
on the state Geographical Information System (GIS) in
order to assist with permitting decisions.

More technical information, workshops and outreach
efforts are needed to encourage sound planning and
conservation programs.

Studies of the costs and benefits of coastal

development, given the probability of future sea level
rise and coastal hazard events will enable communities
to make intelligent and informed decisions about
coastal land use.

As coastal towns complete local comprehensive plans,
provide implementation grants to enable towns to create
programs to acquire high hazard areas along the
shorefront or to improve protection of natural
shoreland features.

4.6 Federal CZMA Programmatic Obiective III -- Prevent or
Minimize Threats to Populations & Property

Prevent or minimize threats to existing populations and property
from both episodic and chronic coastal hazards.

-- Develop annual erosion rate-based retreat policies and
implementation mechanisms to limit redevelopment in high
hazard areas (FEMA V-Zones) and in areas vulnerable to
inundation from sea level rise over time.

-- Institute mechanisms to control development density in
coastal communities to help prevent significant increases in
evacuation times for populations threatened by coastal
hazards. Develop means of educating shoreline property
owners and local officials about episodic and chronic
coastal hazards.

Develop post-event redevelopment plans which:
_ limit development densities
- restrict development in high hazard areas
- provide for relocation of structures out of hazard
areas
- -restrict erosion control devices, such as seawalls,
revetments, and groins.

Develop programs for building retrofit to meet building
codes designed for high hazard areas.

Develop programs to protect important coastal habitats
and other public resources from loss due to sea and Great
Lake level rise.

4.61 Existing Laws, Regulations and Programs

a. Sco-pe

National Flood Insurance Program -- The NFIP discourages
development in hazard areas by establishing building standards to
minimize damage, and by requiring communities to adopt minimum

flood plain management standards, for eligibility for insurance.

Local Shoreland Zoning -- Local ordinances mandated by the
State establish setback standards and restrict use and
development of flood plains and other hazard areas.

Sand Dune Rules -- See discussion under 4.41.

b. Effectiveness

The NFIP is limited by the methodology used to determine the
100-year flood level and the limited enforcement of standards
(NERBC, 1976). The conversion of seasonal dwellings to year-
round permanent dwellings in hazard areas may be encouraged by
the availability of subsidized insurance through the NFIP.
Accuracy of the USGS base maps used is limited by the 1:24,000
scale and 10-foot contour intervals. In some areas, Flood
Insurance Rate Maps (FIRM) do not reflect rapid erosion occurring
since the maps were drawn. Thus, areas that were identified only
as I'AO" (subject to flooding due to overwash) now may be in 'IV"
zones (areas subject to flooding due to wave action).

Local ordinances, if enforced, have the potential to prevent
inappropriate new construction, however, little can be done about
existing non-conforming uses. Over time, destructive coastal
storms eventually will eliminate structures responsible for
intensifying erosion of nearby areas.

4.62 Options for Improvement

Revise the state plumbing code to require adjustment of
well and septic system setbacks in coastal areas to
account for projected sea level rise.

Participate in the 'Upton-Jonesf program of the
National Flood Insurance Program which provides
financial compensation for the relocation or removal of
structures (covered by federal Flood Insurance) in
imminent danger of collapse from damages resulting from
coastal hazards. .

Evaluate the effectiveness of the Sand Dune Rules of
the Natural Resource Protection Act, especially
provisions allowing restoration of non-conforming
structures in frontal dune areas and assessment of
storm damages.

Seek innovative funding sources for state and local
enforcement programs.

Network existing enforcement personnel in state
agencies and at the local level to promote more
thorough enforcement of Maine's environmentallaws.

Develop public information campaigns that foster
support for enforcement of shoreland zoning provisions.

Amend the State Coastal Barriers Law to prohibit new
private construction projects within the Coastal
Barrier System, rather than merely withholding State
expenditures for public facilities or other State
assistance. (The federal COBRA affects only projects
reliant on the federal financial assistance.
Study the economic 'implications of shoreline loss, and
implications for public trust rights.

4.7 Available Information/Studies

Kelley, J., A. Kelley and 0. Pilkey Jr. "Living with the
Coast of Maine", Maine Audubon, Duke University Press, Durham,
N.C. 1989.
Belknap, D.F., Sea Level Rise on the Maine Islands. Proc.
1988 Island Institute Conference, Rockland, ME.
Belknap, D.F. et al., 1984. "Sea-level Change Curves for
Coastal Maine," Report from the Maine Geological Survey to the
U.S. Nuclear Regulatory Commission, Augusta, ME.
Federal Emergency Management Agency (FEMA), 1986. "Coastal
Construction Manual," Federal Emergency Management Agency, FEMA-
55/February, 1986. Washington, DC.
Maine Emergency Management Agency (MEMA), 1988."State of
Maine Hazard Mitigation Plan 1987, Maine Emergency Management
Agency, Maine State Planning Office, Maine Department of Economic
and Community Development, Augusta, ME.
Maine Geological Survey (MGS), 1989. "Anticipated Sea Level
Rise in Maine", a brief for the Maine Science and Technology
Commission, 15 November 1989, Maine Geological Survey, Dept. of
Conservation, Augusta, ME.
New England River Basins Commission, 1976. "Digest of a
Workshop on Identifying Coastal Flood Hazard Areas and Associated
Risk Zones, February 1976, New England River Basins Commission,
Boston, MA.
Ten Broeck, Craig W., 1978. "Policy Recommendations for
Reducing Coastal Storm Damages, A Report to the Governor's
Committee on Coastal Development and Conservation," Maine Land
and Water Resources Council, Maine State Planning Office,
Augusta, ME.
Titus, James G., 1991. "Greenhouse Effect and Coastal
Policy: How Americans Could Abandon an Area the Size of
Massachusetts at Minimum Cost," Environmental Management Vol.15,
No.1, pp.39-58, Springer-Verlag, New York, NY.
U.S. EPA, 1988. "Greenhouse Effect, Sea Level Rise, and
Coastal Wetlands," Ed. by J.G. Titus, U.S. Environmental
Protection Agency, Office of Policy, Planning, and Evaluation,
Washington, D.C.

Section 309 ASsessment

5. ENERGY AND GOVERNMENT FACILITY SITING AND ACTIVITIES

Advisory Committee: Land Use Regulation

Agency-Conticts:

John Flumerfelt, State Planning Office
John Delvecchio, Office of Comprehensive Planning/ DECD
Don Witherill, Land Bureau/ DEP

Public Interest Contacts:

Natural Resource Council of Maine
Maine Municipal Association
Maine Audubon

Energy and Government Facility Siting and Activities

CONTENTS

5.0 SUMMARY

5.1 Maine's Key Coastal Management Policies

5.2 Federal CZMA Legislative Objective

5.3 Federal CZMA Assessment Characterization

5.31 Scope and Definitions
5.32 Available Information and Studies
5.33 Assessment of Problems and Issues

5.4 Federal CZMA Programmatic Objective I -- Enhance Procedures

5.41 Existing Regulations and Procedures
5.42 Options for Improvement

5.5 Federal CZMA Programmatic Objective II Improve Policies
and Standards

5.51 Existing Policies and Standards
5.52 Options for Improvement

5.6 Available Information/Studies

[jr.nrg) 1/14/92

5.0 SUMMARY

The State of Maine does not have siting policies specific to
energy or federal government facilities. All proposed private or
quasi-public developments of a certain nature must satisfy state
environmental laws as well as local land use ordinances. Certain
types of facilities such as hazardous waste landfills and low-
level radioactive waste facilities must meet additional siting
criteria primarily concerned with local hydrology and geology.

Accomplishments

Local governments have a great deal of control over the
siting of energy and energy-related facilities if they
choose to exercise it. Local planning boards must approve
utility proposals, from the siting of a new plant to the
placement of transmission lines, before the Public Utilities
Commission will grant a Certificate of Public Convenience
and Necessity.

Municipal governments have the opportunity to direct the
location of energy-related development with industrial
zoning and local comprehensive plans. Local planning boards
must review applications for developments that are located
in shoreland areas and any other areas subject to local
ordinances.

All proposed private developments of a certain nature and
size must satisfy the criteria of state environmental laws
as well as local land use ordinarces.

Federal government projects must satisfy federal
environmental regulations, receive water quality
certification from the State, and obtain State concurrence
that they are consistent with the core law authorities
composing Maine's Coastal Program. Since the core laws
include the Mandatory Shoreland Zoning Law and the
Subdivision Law as enforced through local regulations,
federal projects also must be found consistent with such
regulations.

Problems

Siting of private power plants is guided by economics and
standard environmental review criteria rather than by state
energy or coastal land use policy.

The state lacks specific siting policies for location of
low-level radioactive waste sites or hazardous waste
landfills in coastal areas. The Maine Low-Level Radioactive
Waste Authority is charged with locating a disposal site for
low-level radioactive waste in Maine before a federally
imposed deadline of December 31, 1992. Several sites
considered by the authority are in coastal watersheds.

Towns adjacent to a proposed major energy or energy-related
project lack a mechanism to directly participate in permit
review or local tax benefits from a project. Adjacent towns
may share in the risks, negative impacts and costs
associated with large-scale industrial development, yet
usually do not share in the property tax benefits.

Military bases in Maine have hazardous waste sites that are
not subject to state regulation. The Brunswick Naval Air
Station has 12 dump sites, two of which are among the 100
sites on the Environmental Protection's Superfund list of
the nation's most hazardous sites. Any military facility
affecting coastal areas is subject to federal consistency
procedures pursuant to the core laws contained in Maine's
Coastal Program, but State environmental regulations
otherwise do not apply.

The State does not have a formal policy or mechanism for
considering economic or social need in applying
environmental regulations. For example, in the case of
maintenance dredging of a federal navigation channel by the
Army Corps of Engineers, several environmental issues must
be balanced against possible state-wide propane shortages if
the channel is not dredged before winter.

5.1 Maine's Key Coastal Management Policies (38 MRSA �1801)-

STATE AND LOCAL COOPERATIVE MANAGEMENT. Encourage and
support state and municipal management of coastal resources.

WATER QUALITY. Restore and maintain the quality of our
fresh, marine and estuarine waters to allow for the broadest
possible diversity of public and private use.

AIR QUALITY. Restore and maintain coastal air quality
to protect the health of citizens and visitors and to
protect enjoyment of the natural beauty and maritime
characteristics of the Maine coast.

SHORELINE MANAGEMENT AND ACCESS. Support shoreline
management that gives preference to water-dependent uses
over other uses, that promotes public access to the
shoreline and that considers the cumulative effects of
development on coastal resources.

HAZARD AREA DEVELOPMENT. Discourage growth and new
development in coastal areas where, because of coEstal
storms, flooding, landslides or sea-level rise, it is
hazardous to human health and safety.

5.2 Federal CZMA Legislative Oblective

� 309(a)(8) Adoption of procedures and enforceable policies to
help facilitate the siting of energy facilities and Government
facilities and energy-related activities and government
activities which may be of greater than local significance.'

5.3 Federal CZMA Assessment Characterization

Assess existing planning and regulatory procedures and policies
which affect the siting of subject facilities and activities.

Evaluate the adequacy of existing state and local
planning processes to address facility siting needs of
greater than local significance.

Examine the rolesplayed by interested and affected
public and private parties during the planning process.

Evaluate enforceable policies, authorities and
techniques used in managing and regulating energy-related
and Government facilitieslactivities and their impacts.

Evaluate existing"project review and permitting
procedures to minimize duplication and enhance communication
between permitting authorities and those requesting permits.

5.31 Scope and Definitions

This assessment covers the siting of energy and energy-
related facilities as well as the siting of federal government
and government-related facilities. The assessment is limited to
facilities and activities, sited along the coast of Maine, which
are of greater than local significance, including the following:
fossil fuel power plants, hydroelectric facilities and dams,
nuclear power plants, radioactive waste disposal sites, waste to
energy facilities and related ash disposal sites, pipelines,
electric transmission lines, oil and gas extraction facilities,
mineral, peat, or aggregate mining, siting or alteration of Coast
Guard facilities or national defense installations, and
maintenance dredging of harbor channels to accommodate fuel
tankers.

5.32 Available Information and Studies

The most recent state energy plan was issued in October
1987, State of Maine Energy Resources Plan. It focused on energy
conservation programs, the supply mix of power in the state, and
historical and projected forecasts of energy consumption and
prices. Hearings currently are underway by the legislative
Commission on Comprehensive Energy Planning to develop a new

Italicized text is excerpted from federal guidance for the
Section 309 assessments.

energy plan for the state. The Commission is hoping to determine
how the most power can be produced for the lowest cost, and with
the least harm to the environment, balancing conservation to
minimize the need for new power plants against pollution caused
by older higher-polluting plants left on line.

The Coastal Program in 1980 prepared a favorability for
development map series that included soils, slopes and areas
suitable for different types of development, including large
ndustrial facilities.

In the 1970s, oil companies explored the feasibility of
offshore oil drilling and the location of shore-side refineries
and facilities along the Maine coast. With the assistance of the
State Planning Office, several coastal communities prepared site
sti.1dies in 1977 and 1978 for onshore facilities related to
proposed oil and gas development on the outer continental shelf.

EnerqV, Heavy Industry and the Maine Coast (1972) and Where
Should Heavy Industry be Sited in Coastal Maine? (1977) were
advisory committee reports with recommendations for location of
heavy industry along the Maine coast.

5.33 Assessment of Problems and Issues

a. Private energy-related facilities and activities --

Waste to Energy Projects. When ground was broken for the
waste to energy power plant in coastal Biddeford in July, 1985,
the project was billed as a solution to the mounting problem of
municipal trash disposal. Waste to energy plants were to solve
the problem of groundwater contamination from land based waste
dumps while producing marketable power. By 1991, two major waste
to energy plants operated in Maine coastal communities, MERC in
Biddeford, and PERC in Orrington.

Waste to energy plants are a concern because of the air
pollutants associated with the burning of mixed trash and the
toxic ash generated. The disposal of waste ash is now a major
issue in coastal communities under consideration as sites for ash
dumps. The ash residue concentrates heavy metals, and other toxic
compounds, which potentially could eventually leak from a dump to
contaminate groundwater resources.

Proposed AES Coal Plant on the Penobscot River. Applied
Energy Systems (AES), a Virginia-based firm, has applied to the
Town of Bucksport on the Penobscot River estuary, for a shoreland
zoning permit as its first step in obtaining permission to build
a highly controversial $309 million power plant. Opponents of the
proposal contend that the air emissions from the coal burning
facility will further impair an already degraded air quality in
the region. Supporters anticipate that the plant will create jobs
and revenues. Small-town planning boards such as Bucksport's are
ill equipped to evaluate the technical issues surrounding
proposals of this magnitude.

The Regional Impacts or Regional Benefits of Energy
Projects. Public hearings provide the only forum for the
participation of neighboring towns that are not directly affected
by a proposed development. Adjacent towns may share in the risks,
negative impacts and costs associated with large-scale industrial
development, yet usually do not share in the property tax
benefits.

For example, Maine Yankee Atomic Power Plant is perched at
the edge of the Town of Wiscasset directly across from the island
town of Westport. Westport and surrounding towns share in the
dangers inherent in the location near Maine Yankee, however all
tax revenues go to Wiscasset. Similarly, the Maine Radioactive
Waste Siting Authority offers to compensate the individual town
in which a low-level radioactive waste site is located, yet a
potentially threatened resource, such as a groundwater aquifer,
may affect the groundwater of several towns.

b. Government activities and facilities

Hazardous Waste Sites on Military Bases. Recent base
closures around the country and in Maine have raised concern
about hazardous waste sites at military facilities. The Brunswick
Naval Air Station has 12 dump sites, two of which are among the
100 sites on the Environmental Protection's Superfund list of the
nation's most hazardous sites. Any military facility affecting
adjacent coastal areas is subject to federal consistency
procedures pursuant to the core laws contained in Maine's Coastal
Program, but in general, state environmental regulations do not
apply.

Storage of Low Level Radioactive Waste. The Maine Low-Level
Radioactive Waste Authority is charged with locating a disposal
site for low-level radioactive waste in Maine before a federally
imposed deadline of December 31, 1992. The authority does not
have the power of eminent domain, and towns must approve the
siting by vote. At least three towns in Maine, in which sites
were under consideration, passed ordinances prohibiting the
disposal of nuclear waste within their boundaries. Maine Yankee
Atomic Power Plant in the coastal community of Wiscasset,
generates approximately 70% of the bulk and 99% of the
radioactivity of the low level waste produced in Maine. The
owners of Maine Yankee have volunteered a site adjacent to the
Wiscasset plant, located on the Sheepscot River estuary.

Maintenance Dredging to Accommodate Fuel Tankers. The Corps
of Engineers has submitted a request for State concurrence with
its determination that maintenance dredging of the Piscataqua
River channel is consistent with Maine's Coastal Program.
Several environmental issues must be resolved or balanced against
possible State-wide propane shortages if the channel is not
dredged before winter. At issue are the suitability of the
proposed in-river disposal area from the standpoint of sand
movement, the need for a lobster survey, and concern by shoreline
property owners that the dredging will cause serious erosion of

their properties. The State does not have a formal policy or
mechanism for considering economic or social need in applying
environmental regulations.

5.4 Federal CZMA Programmatic Obiective I -- Enhance Procedures

Enhance existing procedures and long range planning processes for
considering the needs of energy related and federal facilities
and activities of greater than local significance.

Enhance existing administrative procedures and decision
points where the need for activities and facilities of
greater than local significance are considered during the
planning and permitting processes.

Develop strategies designed to address systemic gaps in
the state's ability to identify and consider needs of
greater than local significance.

Enhance procedures for periodic coordination and
communication with federal, state and local agencies with
regard to energy-related and Government facilities siting
issues.

Enhance procedures for coordination and monitoring of
energy-related and Government facilities during planning,
construction, operation, and disposal and re-use phases.

Coordinate and synchronize regulatory programs and
procedures at all levels of government.

5.41 Existing Regulations and Procedures

a. Private Energy-Related Facilities and Activities --
Energy planning in Maine is the responsibility of the Economic
and Energy Policy Division of the State Planning Office.
Legislative hearings currently are underway to develop a new
energy plan to replace the State of Maine Energy Resources Plan
issued in 1987. However, like the 1987 plan, the new plan is
likely to focus on energy conservation programs, the supply mix
of power in the state, and historical and projected forecasts of
energy consumption and prices. The siting of new private energy-
related facilities is likely to continue to be determined
primarily by market forces, not by State or local plans. Site
development, however, must comply with both state environmental
laws and local land use ordinances.

Development of new hydropower facilities also must be
approved under State and local environmental regulations. State
recommendations regarding federal license renewals for hydropower
facilities are formulated through a formal coordination process
established by Executive Order. The process is under the auspices
of the State Planning Office and the Maine Land and Water
Resources Council.

Projects requiring environmental permits are reviewed by
municipalities under local zoning, shoreland zoning and
subdivision ordinances, and receive State review by the
Department of Environmental Protection, and by the Land Use
Regulation Commission (LURC), which reviews development proposals
in unorganized territories and on coastal island.

The following are the primary statutes regulating energy-
related activities and siting of energy-related facilities:

Natural Resource Protection Act (NRPA) (38 MRSA 5480)--
Administered by the DEP's Bureau of Land Quality Control, NRPA
regulates activities of State concern on, over, or adjacent to
natural resource areas of state significance, including coastal
and freshwater wetlands, great ponds, rivers and streams,
significant wildlife habitat, fragile mountain areas and sand
dunes.

Site Location of Development Act (38 MRSA 481-490)-- Buildings
with a footprint in excess of 60,000 square feet or more than
100,000 sq. ft. of floor space, more than 3 acres of developed
area not to be revegetated, more than 60,000 sq. ft. of area
affected by drilling or excavation of natural resources,
development with 10 or more units of housing, and subdivisions or
developments exceeding 20 acres, are required to be reviewed by
the Dept. of Environmental Protection under this act. Regulated
projects must meet standards for development that minimize the
environmental impact on water quality, scenic resources, air
quality and adverse impact to existing uses. Secondary and
cumulative impact must be considered.

Mandatory Shoreland Zoning Law (38 MRSA 435-446)--The Mandatory
Shoreland Zoning Law regulates land development within 250 feet
of lakes and ponds over 10 acres in size, tidal water, coastal
and freshwater wetlands, rivers and within 75 feet of a stream,
defines as free-flowing water from the outlet of a Great Pond or
the confluence of two perennial streams. The law is implemented
through municipal shoreland zoning ordinances, which must be
approved by the DEP for compliance with minimum State guidelines.

Protection and Improvement of Air (38 MRSA 581-608)--Enforced by
the DEP's Bureau of Air Quality Control, the purpose of this act
is to control air pollution.

Protection and Improvement of Waters (38 MRSA 36la-452)--The
purpose of the act is to control, abate and prevent pollution in
all inland and tidal waters of the state. Water quality
certification requirements of the law are administered by the
DEP's Bureau of Land Quality Control. Other provisions are L
administered by the Bureau of Water Quality Control.

Oil Discharge Prevention and Pollution Control (38 MRSA 541-560)
-- The purpose of the act is to prevent oil spills during
transfer and storage between vessels and between vessels and
onshore facilities in order to preserve coastal recreation and
fisheries. The law is administered by the DEP's Bureau of Oil and
Hazardous Waste.

Submerged Lands Act (12 MRSA �573)-- The Submerged Lands Act
authorizes the Bureau of Public Lands to lease State-owned
submerged lands (other than for aquaculture). The Bureau
currently is receiving comments (until Nov. 2, 1991) on its
September 3, 1991 draft of a new set of "Submerged Land
Rules." Purposes of the rules include protecting public access
and public trust rights, protecting fishing and other marine uses
of submerged lands, protecting ingress and egress of riparian
owners, balancing competing uses, and providing procedures for
conveyance of submerged lands

Mining and Minerals Act (12 MRSA �549)--The Mining and Minerals
Act established the authority of the Maine Geological Survey and
other agencies having jurisdiction over state-owned lands to
regulate exploration and development of mineral resources on
state-owned lands.

Regulation of Public Utilities -- The Public Utilities Commission
(PUC) is a major regulatory agency in the siting of energy
facilities, though its jurisdiction does not include facilities
such as liquid natural gas terminals and oil storage facilities,
which are not public utilities. Public utilities must apply to
the PUC for a Certificate of Public Convenience and Necessity to
build power generating facilities of more than 1,000 kilowatts,
transmission lines carrying 100 kilovolts or more, and gas
pipelines (35 MRSA �13-A).

In general, the PUC will not grant a certificate until the
proposed site is approved by the local planning board. Municipal
governments thus have the opportunity to direct that energy-
related facilities be located in accordance with their local
comprehensive plans and zoning regulations. However, if a
proposal is rejected by the local planning board the utility may
seek a variance from the local board of appeals and, if the
variance is denied, the PUC may grant an exemption from local
zoning (30 MRSA �4962). The PUC also can exempt utilities from
regulation by the Land Use Regulation Commission (LURC) in
Maine's unorganized territories.

once a site is approved by the municipality or LURC the
developer must comply with the Site Location of Development Act,
the Natural Resources Protection Act and other environmental laws
administered by the Department of Environmental Protection.
Public hearings may be held at any phase of the permit review
process by the PUC, LURC, local planning boards, or the DEP.

b. Government activities and facilities -- Federal
projects and activities must satisfy federal environmental
regulations, receive water quality certification from the Dept
of Environmental Protection, and State concurrence that they are
consistent with the core law authorities composing Maine's
Coastal Program.

Coastal Program core laws include all of the laws described
above which regulate private activities and facilities, except
for the Submerged Lands Act, the Mining and Minerals Act, and the
public utility laws. Federal agencies cannot be required to be
consistent with State laws, or amendments to those laws, which
have not received federal approval for inclusion in Maine's
Coastal Program.

Consistency approval technically does not require federal
agencies to obtain State permits, but the information needed for
State review of proposed projects is basically the same as
required for State permit applications.

The Maine Waste Management Agency (MWMA) is responsible for
siting 'waste disposal facilities' and retains the power of
eminent domain to obtain sites. The siting criteria are contained
in Siting Criteria for Solid Waste Facilities issued by MWMA (38
MRSA �2101).

C. Effectiveness -- The laws and regulations that govern
the siting of energy and government facilities in Maine area do
not include additional procedures or conditions applicable to
developments on the coast or in the Coastal Zone as defined by
the Maine Coastal Program. The laws and regulations are effective
in requiring a thorough environmental review of large industrial
projects. The review could be expanded to require an alternatives
analysis to shoreland siting.

5.42 Options for Improvement

Develop improved procedures for evaluating large-scale
development proposals of more than local significance
on the regional or State level; develop mechanisms to
equitably share the direct and indirect benefits and
costs of projects throughout the region affected.

To assure compliance of federal projects and activities
in the coastal area with all State standards, request
federal approval to include additional existing State
laws and regulations in Maine's Coastal Program.

Clarify federal consistency procedures and
responsibilities set forth in Maine's Coastal Program.

5.5 CZMA Programmatic Objective II -- Improve Policies and
Standards

improve program policies and standards which affect the subject
uses and activities so as to facilitate siting while maintaining
current levels of coastal resource protection.

Enhance policies for assessing the acceptability of
sites for energy and Government facilities, e.g., policies
pertaining to the analysis of alternative sites or
identification of the least damaging alternative site.

Enhance policies for assessing the acceptability of
alternative technologies and operational procedures used in
meeting the needs of energy and government facilities.

Enhance the methods by which the coastal management
agency and local government provide policy input into
energy-related or Government facilitieslactivities planning
and development processes, including a process for
anticipating, limiting, and mitigating the impacts which
result from such facilities.

5.51 Existing Policies and Standards

a. Private energy-related facilities and activities--State
energy policy is formulated by the Economic and Energy Policy
Livision of the State Planning Office. Alternative technologies
that are environmentally sound generally are encouraged. Hearings
currently are underway to replace the 1987 energy plan with a new
one, as indicated above.

Site location standards are provided by the relevant
environmental laws as described above under "Existing Regulations
and Procedures." Both NRPA and the Site Location of Development
Act require alternatives analysis.

Comprehensive plans underway in coastal communities as
mandated by Maine's Growth Management Act define local economic
growth and development policies, including appropriate locations
for commercial, industrial and other intensive land use. Local
comprehensive plans can be implemented through site location
standards provided in local zoning, shoreland zoning and
subdivision ordinances.

b. Government activities and facilities -- Site location
policies and standards for federal activities and facilities are
provided under federal consistency procedures by those State
environmental laws which have received federal approval for
inclusion in Maine's Coastal Program. These include key DEP
laws, and the Mandatory Shoreland Zoning Law that requires local
shoreland zoning ordinances, as described above under "Existing
Regulations and Procedures."

C. Effectiveness -- State energy policy is not effective
in addressing siting of energy and energy-related facilities.
Siting issues, including those specific to the coast, should be
included in the state energy plan. The Maine Coastal Program
effectively administers the consistency provisions of the Coastal
Zone Management Act for federal activities in the Maine Coastal
Zone.

5.52 ODtions for Improvement

Develop formal procedures for assessing alternative
sites and technologies, and for assigning costs and
identifying measures to mitigate adverse environmental
impacts.

Develop formal procedures for weighing economic and
social need along with environmental factors in
reviewing permit applications and federal consistency
determinations.

Consider incorporating individual town comprehensive
plans developed under the Growth Management Law as
Coastal Program core laws authorities, thereby being
enabled to require federal consistency.

Develop formal procedures for weighing economic and
social need along with environmental factors in
reviewing permit applications and federal consistency
determinations.

5.6 Available Information/ Studies

Colgan, Charles S. 1978. "Maine and the Search for OCS Oil
and Gas", Maine State Planning Office, Augusta, ME.
Irland, L. "Use of Maine Islands for Industrial Siting,"
Proc. 1983, Island Institute Conference, Rockland, ME.
Maine Department of Conservation, 1977. "Where Should Heavy
Industry be Sited in Coastal Maine?", a report to the Governor's
Advisory Conservation and Development.
Maine Office of Energy Resources. 1983. "Comprehensive
Energy Resources Plan," Office of Energy Resources, Augusta, ME.
Office of Energy Resources 1987. "State of Maine Energy
Resources Plan," Office of Energy Resources, Augusta, ME.
State Planning Office 19*78. "Maine's Coastal Program,
Procedures for: Coastal Shorefront Access and Protection,
Shoreline Erosion Assessment and Mitigation, Energy Facility
Siting, August 1978.

Section 309 Assessment

6. COASTAL WETLANDS MANAGEMENT

Advisory Committee: Natural Areas & Natural Resources
Committee

Agency Contacts:

Don Witherill/ Bill LaFlamme, Department of
Environmental Protection
Steve Oliveri, Bureau of Public Lands/ DOC
Lissa Widoff, State Planning Office
Walter Foster, Department of Marine Resources
Gary Donovan, Maine Wetlands Coalition/ IFW
Duane Scott/ Bill Re.."d, Division of Environmental
Services, Department of Transportation
Ron Joseph, US Fish and Wildlife Service, Bangor office

Public Interest Contacts:

Natural Resources Council of Maine
Maine Audubon

Coastal Wetlands Management

CONTENTS

6.0 SUMMARY

6.1 Maine's Key Coastal Management Policies

6.2 Federal CZMA Legislative objective

6.3 Federal CZMA Assessment Characterization

6.31 Scope & Definitions
6.32 Available Information/Studies
6.33 Assessment-of Problems & Issues
a. Inadequate Information
b. Direct Impacts
C. Indirect Impacts
d. Sea Level Rise
e. Wetland Definitions

6.4 Federal CZMA Programmatic Objective I Protection of
Wetlands

6.41 Existing Laws, Regulations, Programs
6.42 Options for Improvement
6.43 Baseline for Measuring Progres.:

6.5 Federal CZMA Programmatic Objective II -- Wetlands
Restoration

6.51 Existing Laws, Regulations, Programs
6.52 Options for Improvement
6.53 Baseline for Measuring Progress

6.6 Federal CZMA Programmatic Objective III -- Wetlands
Acquisition and Planning

6.61 Existing Programs
6.62 Options for Improvement
6.63 Baseline for Measuring Progress

6.7 Federal CZMA Programmatic Objective IV -- Creation of
Wetlands

6.71 Existing Programs
6.72 Options for Improvement

6.8 Information/ Studies

[jr.wet] 1/92

6.0 SUMMARY

The State of Maine is more than 25% wetland. Peatlands,
freshwater marshes, lakes and rivers blanket the interior of the
state while estuaries, salt marshes, tidal flats, submerged
bottoms, and bays fringe the coastal margin. All wetlands in
coastal watersheds are included within the scope of this
assessment.

By state definition, coastal wetlands include: tidal and
subtidal lands, upland areas below any identifiable debris line
left by tidal action, areas with vegetation present that is
tolerant of saltwater in a marine or estuarine habitat; portions
of coastal sand dunes; and any swamp, marsh, bog, beach, flat or
other adjacent lowland which is washed by the tide.

Shoreland zoning and wetland regulations are designed to
protect certain types and sizes of wetlands from the direct
impacts of development. Recent studies, however, indicate that
alterations of small unprotected freshwater wetlands, and
inappropriate activities adjacent or near coastal wetlands, may
threaten the existence or functioning of significant coastal
ecosystems.

Accomplishments

State shoreland zoning guidelines direct towns to designate
limited residential/ development or rural protection
districts for shoreland areas within 250 feet of the normal
high water mark of any great pond, river or saltwater body,
within 250 feet of the upland edge of a coastal or
freshwater wetland and within 7S feet of the high water line
of a stream.

The Wetland and San Dune Rules of the Natural Resource
Protection Act (NRPA) protect sand dunes, coastal wetlands
and other high value wetlands from alteration or adverse
direct impacts. The Department of Environmental Protection
(DEP), regulates the alteration of coastal wetlands, and
freshwater wetlands 10 acres or greater in size, great
ponds, and adjacent to rivers and streams that have
watershed exceeding 25 square miles.

Several state and federal inventories have mapped and
inventoried coastal and freshwater wetlands in Maine.

Thousands of acres of wetlands in coastal watersheds are
protected by state and local conservation programs.

Problems

Available wetland inventories are incomplete and out-of-
date.

In some coastal areas, construction of roadways and tide
gates restricts tidal flow to wetland areas, causing
replacement of salt marsh vegetation with less productive
fresh marsh vegetation.

Information on wetlands altered by tidal flow restrictions
from road construction, dredging, filling, or other changes
is incomplete and scattered among state agencies.

Pollution from land and water activities threatens water
quality and the contributions of wetlands including wildlife
habitat, flood control, and productivity in the coastal
region.

Coastal and freshwater wetlands are threatened by fringing
development on adjacent land which may increase discharges
of pollutants and nutrients to the wetland.

Shoreland development may prevent the natural long-term
landward migration of fringing marshes and other coastal
habitats as the sea level rises, resulting in a loss of
coastal wetlands.

Present Maine wetland rules do not protect freshwater
wetlands smaller than 10 acres, and combinations of adjacent
but separated wetlands. Forested wetlands and other wetlands
rated as low value are only minimally protected. Wetland
definitions in the state wetland rules are designed for
convenient management rather than based on ecological
functions of wetlands within the landscape.

Changes in federal wetland definitions and rules require the
state to re-examine the need to protect small wetlands and
wetland types no longer federally protected.

A municipal regulations and enforcement vary from town to town
and protection of shared wetlands is often not coordinated.

Wetland rules of the Natural Resource Protection Act lack
.A specific language for assessing the cumulative and indirect
impacts of development.

6.1 Maine's Key Coastal Management Policies
Relating to Wetlands management (38 MRSA 1801)

SCENIC & NATURAL AREAS PROTECTION. Protect and
manage critical habitat and natural areas of state and
national significance and maintain the scenic beauty
and character of the coast even in areas where
development occurs.

MARINE RESOURCE MANAGEMENT. Manage the marine
environment and its related resources to preserve and
improve the ecological integrity and diversity of
marine communities and habitats, to expand our
understanding of the Gulf of Maine and coastal waters
and to enhance the economic value of the State's
renewable marine resources.

6.2 Federal CZMA Legislative Objective

�309(a)(1) Protection, restoration or enhancement-of existing
coastal wetlands base or creation of new coastal wetlands.'

6.3 Federal CZMA Assessment Characterization

Characterize the status of coastal wetlands, their extent (by
type, e.g. tidal and non-tidal), trends (rate of gain1loss), and
threats (direct and indirect) to those wetlands.

6.31 Scope & Definitions

"Coastal wetlands" are defined narrowly under Maine law
to mean saltwater wetlands. This assessment covers both
saltwater wetlands and freshwater wetlands within Maine's coastal
zone as coastal wetlands. The two types of wetlands are defined
in the State's Natural Resources Protection Act (38 MRSA 480 A-S)
as follows:

Coastal wetlands. "Coastal wetlands" include all tidal
and subtidal lands, including all areas below any
identifiable debris line left by tidal action; all
areas with vegetation present that is tolerant of
saltwater and occurs primarily in a saltwater or
estuarine habitat; and any swamp, marsh, bog, beach,
flat or other contiguous lowland which is subject to
tidal action during the maximum spring tidal level as
identified in tide tables published by the National
Ocean Service. Coastal wetlands may include portions of
coastal sand dunes."

Freshwater wetlands. "Freshwater wetlands" include
freshwater swamps, marshes, bogs and similar areas
which are:

a. Of 10 or more contiguous acres, or of less than 10
contiguous acres and adjacent to a surface water body,
excluding any river, stream or brook such that in a natural
state, the combined surface area is in excess of 10 acres;

b. Inundated or saturated by surface or ground water at a
frequency and for a duration sufficient to support, and
which under normal circumstances do support, a prevalence of
wetland vegetation typically adapted for life in saturated
soils; and

C. Not considered part of a great pond, coastal wetland,
river, stream or brook.

Italicized text is excerpted from federal guidance for
Section 309 assessments.

6.32 Available Information/Studies

The Maine Geological Survey in the Dept. of Conservation
coordinates mapping efforts of aquifers, marine environments,
groundwater recharge areas, sand dunes and wetlands. The
Department also coordinates the new State Geographic Information
System (GIS) for computerized data management and mapping. The
Bureau of Public Lands has a Submerged Land Program which maps
existing submerged land leases. The Department of Inland
Fisheries and wildlife inventories and evaluates wetlands as
habitat value for waterfowl, and the Department of Marine
Resources conducts shoreline surveys of shellfish growing areas
under its Shellfish Program.

a. Acreage Estimates

The Maine Wetlands Cons-ervation Priority Plan (Widoff, 1988)
summarizes wetland inventory efforts in Maine. According to
Widoff, Maine has more than 5 million acres of freshwater
wetlands and approximately 160,000 acres of tidal wetlands. A
number of wetland inventories have attempted to quantify and map
wetlands in the state, but inconsistent definitions and methods
has led to wide variations in results.

The U.S. Fish and Wildlife Service (USFWS) in 1954
initiated the first inventory of wetlands 40 acres or greater in
size. This survey was amended in 1959 to include permanent
wetlands greater than 10 acres in size. In 1972, the Maine
Department of Inland Fisheries and Wildlife (IF&W) completed a
10-year mapping of all wetlands greater than 10 acres in size.
This effort, called the Maine Wetland Inventory (MWI), as well as
the previous USFWS inventories, were undertaken to assess the
value of each wetland as habitat for waterfowl breeding. The
Maine Wetlands Inventory uses the Martin et al.,(1953) system of
wetland classification.

"An Ecological Characterization of Maine" (Fefer and
.Schettig eds., 1980) includes an inventory of coastal wetlands
and deepwater habitats from Cape Elizabeth north to Calais. This
work, part of the National Wetlands Inventory (NWI), includes
wetlands with a minimum 3-5 acre size, and uses the Cowardin et
al. system (1979) of wetland classification. In 1983 the Maine
Geological Survey and the Department of Environmental Protection
inventoried freshwater wetlands 10-acres in size and larger as
part of the Maine Freshwater Wetlands Inventory.

Jacobson et al. (1987) inventoried Maine salt marshes over
150 square meters in area using planimetric measurements of Barry
Timson's 1977 coastal geology maps. The total acreage calculated
was 18,960 acres, an increase of almost 11 percent over the
16,917 acres of salt marshes inventoried in the Maine Wetland
Inventory. Since many salt marshes are fringing in character and
small in areal extent, the Jacobson study may underreport the
extent of salt marsh vegetation along the Maine coast (Widoff
1988).

b. Wetland Loss & Gain Trends

The extent of historic and recent wetland loss in Maine is
not well documented. The U.S. Army Corps has maintained records
of harbor and navigation projects since the early 1800s, but few
other records of historic coastal wetland alteration exist. Many
ditches and dikes built across salt marshes in the early 1800's
have filled or breached, resulting in habitat restoration.
wetland permits issued by the Army Corps under Section 404 note
the nature of the proposed changes and the extent of areas
affected, but this information is not readily retrievable at the
state or regional level. Many wetlands have been altered by
construction of road and railroad beds, but the extent of coastal
wetland alteration is not documented.

According to a USF&WS report (Dahl, 1990), Maine had an
estimated 6.46 million acres of wetland circa 1780's and an
estimated 5.2 million acres of wetland in the 1980's,
representing a 20 percent wetland loss (which is less than that
of all other states except New Hampshire). It is not clear
whether the USF&WS estimate accounts only for actual physical
eradication, or considers loss of function due to a degree of
alteration. Widoff (1989) estimated actual wetland loss in Maine
to be closer to 4 percent of the original wetland base.

The North American Waterfowl Management Plan (USFWS, 1986)
reports that Maine had 17,000 acres of coastal, tidal wetlands in
1953 and lost 100 acres (or 0.6 percent) between 1953 to 1972
because of filling or diking.

6.33 Assessment of Problems & Issues

a. Inadequate Inventory Information

Results of wetland mapping projects in Maine to date have
varied depending upon the classification.systems and definitions
used, the purposes for which the inventory was undertaken, and
the geographic region covered by the survey (Widoff 1988).
Coastal wetlands have been inventoried more thoroughly than
forested wetlands and other inland types. Although attention has
focused on coastal wetlands because of their high habitat value
and location, the data collected has limited usefulness in
efforts to determine wetland gain or loss.

Many of the inventories do not include the calculation of
acreage data by wetland unit; the information is often decades
old and has not been updated to reflect natural or man-made
changes in coastal wetland features, such as reversion of
farmland to wetlands. The state lacks a single comprehensive
wetland inventory.

b. Inadequate Information on Alterations and Direct Impacts

Direct impacts on coastal wetlands include any activities
which alter the natural functions of the system, including

hydrologic modification, dredging, filling, or other changes. In
Maine, these alterations have included the construction of dikes
along salt marshes to allow the harvest of salt hay, draining of
salt marshes to control mosquito populations, filling of coastal
wetlands for roads and buildings, damming of coastal rivers and
streams, dredging harbors and channels for navigation and anchor-
ages, disposal of trash and waste on tidal flats and marshes, and
construction of docks, piers, seawalls and breakwaters.

Nonpoint source pollution of coastal wetlands is an indirect
effect of land use. Impacts resulting from activities on adjacent
uplands are also indirect effects of development.

The U.S. Army Corps of Engineers has responsibility for
implementing Section 404 of the Clean Water Act which regulates
certain alterations to wetlands. Estimates of the total acreage
altered are required as part of the general permit and-the
nation-wide permit. The Army Corps also regulates dredging
activities under the Rivers and Harbors Act. The permit
application does not explicitly require acreage estimates, though
in recent years acreage estimates and descriptions of impact and
disposal information have been recorded. According to the Corps,
the information is entered into a computer data-base, but is not
retrievable in useable form.

Permit information collected by the Maine Department of
Environmental Protection remains on the permit and is not entered
into a state database, although they currently are trying to
establish a procedure to track future wetlands alterations.
Information on the amount of wetlands altered under DEP permits
is not available at this time.

c. Cumulative Effect of Indirect Impacts

Indirect impacts are results of activities on lands adjacent
to a wetland, or the secondary results of a wetland activity
such as placing fill on a marsh. Indirect impacts might include,
for example, unavailability of the salt pannes to juvenile fish,
because of the fill. The effects of non-point source pollution
on wetlands is an indirect impact of land use which threatens
fresh and coastal water quality and habitat in the coastal
region.

Wid.off (1988) concluded that activities on uplands adjacent
to wetlands often impair wetland functions and values. Coastal
wetlands are threatened most by fringing development which may
increase the discharge of pollutants and nutrients to the
wetland. While most coastal wetlands are protected by Maine's
Natural Resources Protection Act and local shoreland zoning
ordinances, the uplands adjacent to protected wetlands lack
mandatory and consistent regulations'.

d. Sea Level Rise

If present trends continue, sea level will continue to rise
along the Maine coast and flood extant coastal habitats. Fringing
marshes and other coastal wetlands may eventually disappear if
shorelines cannot accommodate the inland migration of coastal
habitats. Functions, biodiversity, and acreage of coastal
wetlands all will change as a result of sea level rise.

e. Wetland Definitions

The Natural Resources Protection Act regulates all coastal
wetlands and freshwater wetlands 10 acres or larger. Department
of Environmental Protection criteria for determining when these
wetlands meet the minimum acreage for NRPA jurisdiction
illustrate the need for revised definitions of regulated
wetlands. For example, the 10- acre size limit does not
effectively protect freshwater wetland functions since several
wetlands under 11 acres collectively may be equal in significance
to one large wetland. Two wetlands under 10 acres in size that
are 10 feet from each other and unconnected, are outside NRPA
jurisdiction. Narrow sections of wetland less than 100-feet wide,
yet greater than 100 feet in length often are not included in
acreage estimates, even though inclusion of such 'fingers' in the
acreage estimate would bring the main wetland under NRPA review.

6.4 Federal CZMA Programmatic Oblective I -- Protection of
Wetlands

Protect and preserve existing levels of wetlands, as measured by
acreage and functions, from direct, indirect, and cumulative
adverse impacts, by developing or improving regulatory programs.

a. Avoid or minimize any direct adverse impacts of activities
that otherwise destroy or impair wetlands through:

o Sequenced mitigation decision making, which provides
first for avoiding impacts, then minimizing impacts, and
finally, appropriate compensatory mitigation. This process
also includes practical alternatives analysis;

� Cumulative impacts and secondary effects analysis;

� Exemptions only for those activities with negligible
impacts;

o A comprehensive mitigation policy and program;

o Adequate enforcement, surveillance and monitoring
programs, that include measuring gains and losses of
wetlands acreage and function;

o Developing biological, water quality and hydrological

criteria for maintenance of wetland functions.

b. minimize significant adverse impacts on wetlands from upland
activities or water uses by:

0 Requiring the retention of natural systems or land use
practices which reduce or prevent indirect adverse impacts
(e.g. vegetated buffers & setbacks).

o Establishing performance standards for existing
activities that are known to cause adverse impacts.

o Requiring siting of development away from wetlands or
away from critical areas where development is likely to lead
to significant indirect impacts to wetlands.

6.41 Existing Laws, Regulations, Programs

a. Wetland Protection -- State Laws & Programs

(1) Wetland Protection Rules -- The Department of
Environmental Protection adopted Wetland Protection Rules of the
Natural Resources Protection Act on June 13, 1990. The Wetland
Rules support the goal of no net loss of wetlands but, in
recognition that this goal may not always be possible, outline
procedures for mitigation of wetland alteration.

For the purposes of regulation, wetlands are classified by
the Department as Class I, Class II, or Class III. Class I
wetlands have one or more of the following characteristics: is a
coastal wetland or great pond; contains endangered or threatened
plant species on the Official List of Endangered and Threatened
Plants of the State of Maine; contains a palustrine natural
community listed on the Maine Natural Community Classification
and ranked Sl or S2 (20 or fewer documented occurrences in
Maine); or contains significant wildlife areas as defined by NRPA
whether or not they are mapped.

Class II wetlands do not contain any characteristics of
Class I wetlands and contain one or more of the following
attributes: are located within 250 feet of a coastal wetland; are
located within 250 feet of the normal high water line and within
the same watershed of any lake or pond classified as GPA (great
pond); are located within 250 feet of the normal high water line,
and contiguous to, a river, stream or brook, including
impoundments not classified as GPA; contains at least 20,000
square feet of aquatic vegetation, emergent marsh or open water
during most of the growing season in most years; are bogs
consisting of peatland; or are floodplain wetlands.

Class III wetlands do not contain any characteristics of a
Class I or Class II wetland and include areas such as wet meadow
and wooded swamps.

Sequenced decision-making -- The Rules provide first for

avoiding, then minimizing, and finally for mitigating adverse
impacts. If a practical alternative to alteration of the wetland
does not exist, preference for compensation for degraded wetlands
is as follows: restoration of the functions of degraded wetlands,
enhancement of wetlands, preservation of existing wetland or
upland, creation of wetland from upland or compensation.

Compensation Policy -- In circumstances where no practical
alternative exist, compensation is allowed. Compensation is
required to take place on or adjacent to the project site, or if
not possible, within the same watershed, except as allowed for
mitigation banking. The Wetland Evaluation Technique (WET)
published by the U.S. Army Corps of Engineers and other
comparable methodologies for assessing the functions of wetlands
are acceptable to the DEP. Compensation for lost wetland
functions must meet the following minimum ratios measured by
area: 0 1:1 for restoration, I enhancement or creation in Class II
or Class III wetlands;
0 2:1 for restoration, enhancement or creation in Class I
wetlands;
0 8:1 for preservation in all wetlands classes.

Compensation is not required for alterations of less than
20,000 square feet in Class III wetlands (including wet meadows,
wooded swamps) unless the DEP identifies wetland functions that
will be lost or degraded. Functional assessments or compensation
are not required for minor alterations of Class I coastal
wetlands with no marsh v(-:getation (mudflats, beaches) that do not
fill more than 500 square feet of intertidal or subtidal area and
with no adverse effect on marine resources or wildlife habitat.

Public and private entities may apply to the DEP for
permission to undertake wetland compensation projects in advance
to offset future projects. The above ratios are added together
to determine the amount of credit required for a future project.
To date, no entity has applied for permission to establish a
mitigation bank, however the State Department of Transportation
is expected to take advantage of the opportunity. No entity may
use mitigation banking to compensate for more than 25 acres of
wetland alteration within one year.

The quality of the mitigation allowed for banking purposes
is assessed by updated functional assessments. At this time the
10 State does not require long term monitoring of mitigation
projects to assess the success of restoration of functions and
values over time. For compensation projects involving
restoration, enhancement or creation, a deed restriction or
conservation easement will be imposed by the DEP requiring that
the parcel remain undeveloped in perpetuity and that the wetland
be maintained with the DEP as enforcing agent.

Exemptions under Permit by Rule -- Certain activities with
"negligible" (as defined by the Department) impacts taking place

in or adjacent to wetlands do not require a detailed NRPA permit.
.These activities, if certain standards and practices are applied,
are determined not to have a major impact on water environmental
quality. Activities covered under the permit by rule include, but
are not limited to, the placement of moorings, maintenance,
repair and replacement of structures, disturbance of soil
material adjacent to a waterbody or wetland, placement of outfall
pipes and construction of stream crossings, placement of rip-rap,
as well as restoration of natural areas. Under Permit by Rule,
a photograph of the area to be altered, a notice and a location
map are filed with the DEP; unless the applicant is notified
within 14 days, work can begin.

Hydrologic & Habitat Functions -- The Department of
Environmental Protection accepts the Wetland Evaluation Technique
(WET), published by the U.S. Army Corps of Engineers and other
comparable assessment techniques as methods for wetland
functional assessments.

Permit Review Process -- Permit applications under the
Natural Resource Protection Act are circulated by the DEP, as the
lead agency, for review by relevant state agencies including the
Department of Marine Resources, the Department of Inland
Fisheries & Wildlife, the Bureau of Public Lands and the Maine
Geological Survey. NEPA applications also generally are sent to
the Army Corps of Engineers to accommodate their State Program
General Permit, but coordination with federal agencies otherwise
is on a case-by-case basis.

(2) Mandatory Shoreland Zoning Ordinances -- The Mandatory
Shoreland Zoning Act (38 MRSA 435-447) requires towns to
designate levels of protection for shoreland areas within 250
feet of the upland edge of a coastal wetlands, great ponds, and
certain freshwater wetlands. Minimum standards must be met for
vegetated buffers between proposed activities and the wetland
edge. Local shoreland zoning ordinances based on state guidelines
provide a measure of protection for adjacent wetlands.

(3) DEP Water Bureau Programs -- Best management practices
for construction, agriculture, and forestry activities have been
developed by the DEP's Non-point Source Pollution Program. These
practices are recommendations without the force of law unless
incorporated in local land use ordinances.

The Water Bureau administers criteria for water quality
classification of fresh and tidal waters. The tidal water
criteria are based on dissolved oxygen, aquatic community
assemblage, and bacteria content. The tidal water quality
classifications (SA, SB, and SC) specify allowable uses and
levels of pollution.

(4) Enforcement, Surveillance and Monitoring Efforts
Maine does not track information on losses of wetland acreage and
function, although individual permit applications include maps,
photos and dimensions of areas affected by proposed projects.

Information on acres of wetlands gained is not supplied by permit
applications, but future projects requiring mitigation will
include this type of information.

The ability to recognize wetlands and generally delineate
their boundaries is necessary to ensure adequate enforcement of
local shoreland zoning ordinances as well as laws enforced by the
DEP. Local Code Enforcement Officers (CEOs) extend the ability of
the State to monitor activities having possible impacts on
wetlands and to enforce natural resource protection laws. The
Department of Economic and Community Development (DECD) trains
individuals to identify wetlands and detect possible violations
of wetland and other natural resource regulations under its CEO
Training Program. Recently the DECD published a detailed
oractical quide to aid CEOs in identifying and delineating
wetlands: Maine Wetlands and Their Boundaries: A Guide for Code
Enforcement Officers (Ralph-W. Tiner, June 1991).

b. Effectiveness

(1) Wetland Protection Rules
Freshwater wetlands smaller than 10 acres, and combinations
of adjacent but separated small wetlands, remain unregulated
under the State Wetland Rules. Class III wetlands are minimally
protected, although the functions of these wetland types in a
landscape may be locally significant.

State mitigation efforts are effective although restrictions
requiring compensation in the same waters-,ed have caused some
applicants difficulty. No widely acceptable functional assessment
10 methodology is tailored to environmental conditions found in
Maine, therefore mitigation requirements tied to functional
assessments are variable. At this time, there are no long-term
monitoring projects at restored or mitigated wetland sites, thus
the effectiveness of mitigation efforts and monitoring programs
cannot be assessed.

Cumulative Impacts -- Concern for the cumulative impacts of
development on wetlands are addressed generally in the statement
of purpose of the Natural Resources Protection Act which
regulates wetlands. Indirect impacts on wetlands are considered
during review of large upland development projects within the
scope of the Natural Resource Protection Act. The DEP, however,
lacks specific guidance for consideration of cumulative impacts
tO during permit decisions. Methods for assessing cumulative impact
are not specified in the NRPA, and thresholds for state and local
regulators to use in determining cumulative impacts have not been
developed.

Under the state's Comprehensive Planning and Land Use Act,
communities were directed to prepare local comprehensive plans
in order to anticipate the impacts of future development. A
complete discussion is included in the 'Cumulative Impactf
assessment. Since the first towns to complete plans under the

program have not finalized ordinance programs to implement the
plans, the effectiveness of the comprehensive planning effort to
avoid the unwanted cumulative impacts of development are unknown.

Permit*by Rule -- Permit by Rule Standards detail practices
to minimize adverse impacts of minor activities. The cumulative
impact of small projects falling under Permit by Rule has not
been addressed.

(2) Mandatory Shoreland Zoning Ordinances -- The Mandatory
Shoreland Zoning Act is an effective tool for protecting wetlands
from the adverse effects of upland activities. Local municipal
planning boards may regulate freshwater wetlands under 10 acres
in size and coastal wetlands with shoreland zoning designations
and local zoning.

Shoreland zoning may be used to direct development from
sensitive shore areas with the resource protection designation,
but these designations are a local prerogative, which allows
towns to control most of the land use decisions impacting
freshwater and coastal wetlands. Municipal regulations and
enforcement vary from town to town and protection of shared
wetlands is not necessarily consistent. Local governments may
grant variances from shoreland zoning requirements if the
applicant can demonstrate hardship.

(3) DEP Water Bureau Programs -- The best management
practices developed by the Nonpoint Source Program minimize
adverse impacts to wetlands during land development activities.
The effectiveness of the BMP's is limited by the voluntary nature
of the program. Maine's water classification scheme provides
minimal criteria for water quality and habitat functions of
wetlands adjacent to and included in the designated waters. The
three designations are very broad, with Class SB waters, the most
common designation, allowing discharges that do not cause
detrimental changes to the aquatic community. Information on the
biodiversity, habitat, and abundance of species on which the
classification should rely is not uniformly available for
estuarine and marine environments. Many wetlands not associated
with river or tidal waters are not included in the water quality
classification.

(4) Enforcement, Surveillance and Monitoring Efforts -- Lack
of adequate staffing continues to be a problem affecting the
ability of the Department of Environmental Protection to review,
monitor and enforce its environmental protection laws. The Code
Enforcement Training Program has been effective in training
personnel at the local level, however enforcement at the local
level is hampered by lack of political will and funding for
enforcement staff.

6.42 Options for Improvement

Develop nonpoint source plans for coastal watersheds which
document the cumulative effects of wetland alterations in

coastal watersheds on coastal water quality and estuarine
habitats.

Evaluate the extent to which specific coastal and freshwater
wetlands may be threatened by short and long-term sea level
rise. Determine how such threats may be minimized or are
likely to be increased by coastal construction.

Develop guidelines for evaluating the ecological function of
wetland types.

Develop guidelines for dredging and dredged material
disposal in coastal waters. Conduct studies to determine if
potential harbor dredging is likely to result in serious
erosion or filling of sensitive nearby wetlands.

Compare enforcement and regulation of Maine's wetland laws
with those of other state to identify deficiencies

Change state regulation to increase protection of wetlands
greater than 2-acres in size and forested wetlands.

Provide technical assistance to towns to develop wetland
protection ordinances that protect wetlands not under state
regulation.

Increase DEP staffing for wetland permit review, compliance
checks and monitoring.

Develop guidelines for assessing the cumulative impact of
permit decisions and thresholds for state and local
regulators to use in permit reviews.

6.5 Federal CZMA Programmatic Objective II-- Wetlands
Restoration

increase levels of wetland sustainable acreage and functions
within formerly existing or degraded wetlands:

a. Develop and enhance public wetland restoration programs.

o Identify degraded wetland sites.

o Establish and implement the best available enhancement
and restoration measures.

� Prohibit future degradation of the site.

� identify sites where restoration projects have the
greatest likelihood of success.

b. Encourage restoration and monitoring of wetlands in areas
likely to achieve the greatest NPS benefits.

C. Encourage restoration which does not maximize one function
at the expense of another.

d. Encourage acceptable wetlands restoration by private
landowners only if technical assistance and monitoring can be
provided.

,6.51 Existing Laws, Regulations, Programs

a. Scope & Effectiveness

Wetland Restoration Efforts. The state does not have a
program that specifically identifies and restores degraded
wetlands. Wetland restoration activities require a permit under
the Wetland Protection Rules of NRPA or a application to the
Permit by Rule Program. Typical restoration efforts along the
coast include revegetation of dune areas and marsh disturbed by
construction.

The USF&WS Bangor office manages a Wetlands Restoration
Program in Maine. This program pays for restoration projects on
private lands at the sites of previously altered wetlands. The
program has focused on restoring the hydrology to freshwater
wetlands. On the average, approximately 15 acres are restored
each year. Usually the restoration projects involve the removal
of an old road bed, fill, or the plugging of a drainage ditch
through a field.

The U.S. Army Corps of Engineers is undertaking a wetland
restoration effort in an area in Wells that was originally filled
with material from a Corps dredging project. The Department of
Transportation also restores wetlands for mitigation required in
connection with highway maintenance and construction.

Identification of Degraded Areas. The Department of Marine
Resources Shellfish Program monitors shellfish growing areas
along the coast for bacterial contamination. This indicator of
water quality is the most wide-scale program in the state that
identifies degraded wetlands. The Nonpoint Source Pollution
Program administered by the Department of Environmental
Protection has assessed non-point source pollution in coastal
waters, identified some coastal estuaries and embayments
threatened or impaired by non-point source pollution, and
prioritized areas where non-point sources can be distinguished
from large point sources.

Effectiveness -- In general, there are few wetland
restoration projects in Maine. Restoration of coastal wetland
sites is conducted under the Wetland Rules. DEP requirements that
wetland restoration for mitigation credit be performed in the
same watershed as the wetland compensated for, restricts
restoration efforts (by the DEP and others) to areas of the state
with road projects and development activity.

The state lacks a comprehensive inventory of degraded

wetlands and particularly, those with restricted tidal flow.
At a number of locations along the Maine Coast old dikes and
embankments block tidal flow to tidal salt marshes. The most
notable is an approximately 1200-acre marsh behind a dike on the
West Branch of the Pleasant River in Addison. Other common
impairments to coastal tidal marsh function are caused by
undersized culverts under roadways which restrict tidal flow.
These situations should be evaluated for wetlands restoration
opportunities.

6.52 Options for Improvement

Identify degraded coastal wetlands including areas of tidal
flow restriction and alteration.

Convene an interagency,group (including the Departments of
Inland Fisheries & Wildlife, Marine Resources, Environmental
Protection, Conservation, and Transportation) to prioritize
wetlands for restoration efforts in anticipation of projects
requiring mitigation and to identify state restoration
priorities.

6.6 Federal CZMA Programmatic Oblective III -- Wetlands.
Acquisition and Planning

Utilize nonregulator_y and innovative techniques to provide for
the protection and acquisition of coastal wetlands.

Promote or encourage fee simple or less than fee simple
.acquisition of coastal wetlands.

Provide incentives to landowners to sell or donate wetlands
to states or local governments.

Provide disincentives to development in or near wetlands
through restricted capital expenditures, taxes, etc.

Provide public education and information programs to the
public that describes the importance of coastal wetlands
functions and values, as part of a larger effort to develop
program changes in this area.

Promote and encourage planning and coordination between
federal, state and local governments which lead to plans to
protect, restore and create wetlands in specific areas and basin
wide (l.e., Special Area Management Plans, EPA, COE, advance
identification programs, growth management, mitigation banks,
state comprehensive wetland plans, etc.).

6.61 Existing Programs & Effectiveness

Dept. of Environmental Protection -- Creation of

conservation easements to preserve wetlands is encouraged by the
DEP in its permitting process under the NRPA and the Site
Location of Development laws.

Dept. of Conservation -- The Bureau of Public Lands (BPL)
acquires land for public recreation, wildlife habitat, timber
management and access. The Bureau of Parks and Recreation (BPR)
maintains the state's park system and acquires lands with funds
from the Land & Water Conservation Fund. Some BPR and BPL
holdings include coastal and inland wetlands.

Dept. of Inland Fisheries and Wildlife -- Funds from t he
federal Wallop-Breaux Amendment to the Dingell-Johnson Act, the
Pittman-Robertson Act and state bond issues are used to acquire
wildlife habitat including wetlands.

Land for Maine's Future Board -- The Land for Maine's Future
Board administers funds from a state bond issue for the
acquisition of lands of state significance, including wetlands.
Lands acquired by LMFB are managed by the DOC and IFW.

State Planning Office -- "The Estuary Book" and "Estuary
Profiles" were developed by the Maine Coastal Program to provide
information on the functions and values of coastal wetlands. The
SPO also hosts Maine's Critical Area Program (CAP), which is a
volunteer non-regulatory owner-registry program for identifying
unique natural areas. Owners agree to protect the feature and
notify the CAP of changes in status.

The Natural Heritage Program -- The program 'ranks natural
communities according to rate of occurrence with in the state.
Wetland communities with an occurrence rate of less than 20 are
classified as Class I wetlands under the Maine Wetland Protection
Rules.

Maine Wetlands Coalition & North American Waterfowl Plan
This is a coalition of state agencies and private conservation
groups that works to identify priority wetlands for protection.
The coalition uses the North American Waterfowl Management Plan/
State Wetlands Concept Plan, developed by the USFWS, which
outlines specific wetland acquisition priorities for the Service.
The North American Waterfowl Management Plan is a joint effort by
federal and state agencies and conservation groups to target
acquisition efforts in key focus areas with significant habitat
for waterfowl.

The WaterfGwl Management Plan (1989) identified five focus
areas in Maine that are preservation priorities. These are:
Cobscook Bay, Merrymeeting Bay and the Lower Kennebec River, East
Coast, West Coast, and Inland wetlands. The Plan recommends
purchasing or protecting with easements the wetlands and adjacent
upland buffers.

Private Efforts -- Several major conservation organizations
with coastal holdings which potentially could include wetlands

are: National Audubon, Maine Audubon, The Nature Conservancy, and
Maine Coast Heritage Trust. Maine's 65 small land trusts have the
ability to own and hold conservation easements on wetlands.

Effectiveness -- Wetland acquisition programs have been
effective in protecting and managing wetlands in coastal areas.
Several private conservation groups and state programs have
coordinated protection efforts in Cobscook Bay, a protection
priority for the state. Acquisition program are generally limited
by the lack of a stable funding source.

6.62 Options for Improvement

Protect tax exempt and municipal service fee exemptions for
non-profit conservation organizations.

Promote a public/private partnership or coastal conservancy
to assist with acquisition of easements and development
rights in critical wetlands.

Develop strategies to protect wetlands in state ownership
including allowing the Maine Department of Transportation to
contribute wetlands owned by the department for mitigation.

6.7 Federal CZMA Programmatic Oblective IV -- Creation of
Wetlands

Develop and improve artificial wetlands creation programs as the
lowest priority.

Develop procedures for evaluating and selecting candidates
from an ecological systems as well as an economic perspective.
16 Develop an appropriate monitoring program to evaluate the
success of any efforts to create artificial wetlands.

40 6.71 Existing Laws, Regulations and Programs

Since Maine retains most of its original wetland base, state
@olicy seeks to protect existing wetlands rather than develop and
improve artificial wetlands. Creation of wetland from upland,
because of the high level of uncertainty of success,is regarded
as a last resort, available only when other methods of
compensation are not practicable and the applicant can
demonstrate that the creation project will replace the functions
of the wetland to be altered.

The Nonpoint Source Program creates small wetlands for the
purpose of pollution prevention. These created ponds are
monitored for water quality parameters.

-6.8 Information/Studies

Adamus, P.,1986. "The Cumulative Impacts of Development in
Southern Maine-- Wetlands: Their Locations, Functions, and
Value," Eco-Analysts Inc. for Maine State Planning Office,
Augusta, ME.
Blakesley, R. 1990. "Dredge Management Strategy--Draft,"
Maine State Planning Office, Augusta, ME.
Bureau of Public Lands, 1989. " Submerged Lands Study, A
Study of Submerged Land and Leasing Policies," Bureau of Public
Lands, Department of Conservation, Augusta, ME.
Dahl, T.E.. 1990. "Wetland Losses in the United States
1780's to 1980's," U.S. Department of the Interior, Fish and
Wildlife Service, Washington, D.C. 21 pp.
Doggett, L. and J. Sowles. "State of the Marine Environment"
Maine State Planning Office, 1982. "A Dredge Management
Study for Maine", Maine State Planning Office, Augusta, ME.
Reprint 1989.
Reid, W. V. and M.C. Trexler, 1991. "Drowning the National
Hertitage: Climate Change and U.S. Coastal Biodiversity, World
Resources Institute, Washington, D.C.
Ruffing, J. 1990. "Estuary Profile Series", Maine Coastal
Program, State Planning Office, Augusta, ME.
Tiner, Ralph W., June 1991, "Maine Wetlands and Their
Boundaries: A Guide for Code Enforcement Officers"
USFWS, 1990. "Regional Wetlands Concept Plan, Emergency
Wetlands Resource Act," Northeast Region U.S. Fish and Wildlife
Service, Newton Corner, MA.
USFWS, 1989. "North American Waterfowl management Plan,
Atlantic Coast Venture," Northeast Region U.S. Fish and Wildlife
Service, Newton Corner, MA.
Widoff, L. 1988. "Maine Wetlands Conservation Priority
Plan", An Addendum to the State Comprehensive Outdoor Recreation
Plan (SCORP), Maine Bureau of Parks and Recreation, Maine State
Planning Office, Wetlands Subcommittee, Land and Water Resources
Council, Augusta, ME.

Maps
Marine Geology Maps
Coastal Sand Dune Map
Maine Wetland Inventory Maps
National Wetland Inventory
Freshwater Wetland Inventory Maps

Section 309 Assessment

7. ADVERSE CUMULATIVE &,SECONDARY IMPACTS OF DEVELOPMENT

Advisory Committee: Growth Management Committee, Land
and Water Resources Council

Agency Contacts
Josie Quintrell, Office of Comprehensive Planning, DECD
Fran Rudoff, Office of Comprehensive Planning, DECD
Jenny Ruffing, Maine Coastal Program, SPO
Ron Dyer, Nonpoint Source Pollution Program, DEP
John Sowles, Marine Program, DEP
Dave Keeley, Maine Coastal Program, SPO

Public Interest Contacts
Orlando Delogu, University of Southern Maine Law
School
:7 Alison Rieser, Marine Law Institute
Natural Resources Council of Maine
Maine Audubon Society

Adverse Cumulative & Secondary Impacts of Development

CONTENTS

7.0 SUMMARY

7.1 Maine's Key Coastal Management Policies

7.2 Federal CZMA Legislative Objective

7.3 Federal CZMA Assessment Characterization

7.31 Scope & Definitions
7.32 Available Information/Studies
7.33 Assessment of Problems & Issues
a. Natural Resources Threatened by
Cumulative Impacts
b. Activities Threatened by Cumulative Impacts
C. Identification of Growth Areas
d. Adequacy of Institutional, Legal &
Policy Mechanisms

7.4 Federal CZMA Programmatic Objective -- Control Cumulative
Impacts

7.41 Options for Enhancing Coastal Planning Processes
7.42 Options for Improving Project & Permit Review
Decisions
7.43 Baseline for Measuring Progress

7.5 Available Studies/Information

[jr.cum] 1/16/92

7.0 SUMMARY

In the 1980s, coastal Maine experienced an unprecedented
demand for coastal land, elevated land prices, urbanization or
suburbanization of many small villages, and changes in the rural
landscape. The development surge raised and intensified concerns
that environmental quality--the basis for sustained quality of
life on the Maine coast--was declining. Cumulative impact of
development describes the effect of incremental changes to the
landscape and environment over time which is'greater than the sum
of individual effects.

The impetus for the current comprehensive planning effort,
currently underway in towns throughout Maine, came from previous
studies of coastal towns experiencing rapid growth in population
and changes in land use. These studies recognized that permit
decisions were often made in isolation without consideration of
other present, past or possible future effects. Local plans were
needed to anticipate the cumulative impacts of growth in order to
avoid negative effects (such as impaired air and water quality,
destruction of coastal habitats and urban sprawl) and to direct
appropriate growth and development in communities.

Extensive shellfish closures along the coast highlight the
connections between land use, water quality, and economic oppor-
tunities. Water pollution in estuaries and other tidal embayments
reflects the cumulative effect of land and water use in the
surrounding watershed. A public survey distributed by the Maine
Coastal Program to town officials and othe.-s in May 1991 revealed
a strong concern for the cumulative effect of our use of coastal
lands and waters on water quality and coastal habitats.

Accomplishments

Regional planning efforts such as the Casco Bay Project, the
Gulf of Maine Program and the International Waterway Commis-
sion on the St. Croix River, have begun to address the
cumulative and secondary impacts of activities on estuarine
and marine environments.

The Growth Management Program provided technical assistance
and funding to coastal communities for comprehensive plan-
ning efforts. Many communities along the coast have defined
in their comprehensive plans, a vision for the future that
could prevent the unwanted cumulative effects of growth and
development.

The Code Enforcement Officer Training Program in the Maine
Department of Economic and Community Development trains and
assists local code enforcement officials to improve enforce-
ment of existing environmental regulations.

Major state environmental laws, including the Natural Re-
source Protection Act (NRPA), the Site Location of Devel-
opment Act and the Mandatory Shoreland Zoning Act, require
consideration of cumulative impacts in permit decisions.

The Critical Areas Program and the Natural Heritage Program
have inventoried significant natural areas throughout the
State. The Department of Inland Fisheries and Wildlife has
identified important habitats in coastal communities and
conducted marine wildlife inventories of many embayments and
islands.

The Nonpoint Source Pollution Program at the Maine Depart-
ment of Environmental Protection has identified coastal
waters threatened by nonpoint source pollution and has
sponsored demonstration projects that reduce nonpoint source
pollution from land-based activities.

The Department of Marine Resources monitors shellfish flats
over 3,600 miles of Maine coastline and has identified point
sources of pollution and suspected nonpoint or diffuse
sources in most productive shellfish areas.

Problems

More local planning is needed for shared natural resources,
such as estuaries or groundwater aquifers.

Approximately 30 percent of Maine's shellfish flats are
closed because of pollution from point and nonpoint sources.

Communities that rely on surface waters for public water
supplies face shortages as population increases, as well as
potential pollution from nonpoint source sources as land and
water used in coastal watersheds changes.

Inadequate septic systems and straight pipes account for
bacterial pollution of many productive shellfish flats.
State law permits licensed overboard discharges to continue
if no reasonable alternative exists.

Many shellfish flats remain closed after water quality
improves because of inadequate staffing and funding for
water quality monitoring; municipalities need funds for
septic system and sewer system upgrades; the estuarine moni-
toring program at the Department of Environmental Protection
is unfunded.

Existing information on coastal water quality and sources of
pollution is scattered between several agencies.

Monitoring of nearshore tidal waters for pollutants other
than bacteria is inadequate or nonexistant.

Enforcement of environmental regulations is inconsistent and
often done after the fact on state and local levels because
of inadequate funding and coordination.

The cumulative effect of development on small freshwater
wetlands that are not protected by state regulation threat-
ens habitat diversity and coastal water quality.

Permit decisions may be made at the local and state level in
isolation, without consideration of other present, past or
future projects.

State agencies lack formal guidelines for including consid-
eration of cumulative impacts in permitting decisions.

Communities lack funding for technical assistance for plan-
ning and land use programs.

Other than the minimum state water quality classification
designations of coastal waters, there are no established
thresholds for development or environmental impact beyond
which further degradation is not acceptable.

The Natural Resource Protection Act (NRPA) requires consid-
eration of the scenic impacts of proposed development, yet
the needed inventory information and guidelines to implement
this criteria during permit review does not exist.

The significant wildlife habitat criteria of NRPA do n-)t
include marine wildlife areas cr other significant marine or
estuarine habitats that may be susceptible to the cumulative
impacts of development.

7.1 Maine's Key Coastal ManacFement Policies Relating to
Cumulative and Secondary Impacts of Development (38 MRSA 1801)

WATER QUALITY. Restore and maintain the quality
of our fresh, marine and estuarine waters to allow for
the broadest possible diversity of public and private
uses.

7.2 Federal CZMA Legislative Oblective

� 309 (4)(5) Development and adoption of procedures to assess,
consider, and control cumulative and secondary impacts of coastal
growth and development, including the collective effect on
various individual uses or activities on coastal resources, such
as coastal wetlands and fishery resources.'

7.3 Federal CZMA Assessment Characterization

Characterize the nature, type, and extent of secondary and
cumulative impacts in the coastal zone.

Identify areas in the coastal zone where rapid growth
requires improved management of potential cumulative and
secondary impacts.

identify areas in the coastal zone which possess sensi-
tive coastal resources (wetlands, water bodies, fish and
wildlife habitats), and require a greater degree of protec-
tion and understanding of the cumulative and secondary
impacts related to growth and development.

Assess the adequacy of existing institutional, legal
and policy mechanisms (e.g., coastal development permits,
local land use plans and ordinances, water quality reviews,
infrastructure funding policies) that address cumulative and
secondary impacts on coastal resources.

7.31 Scope & Definitions

Cumulative impact is used to describe the total change that
results from many smaller changes over time. Small changes--a
residential subdivision, a new dock, a parking lot expansion, a
new strip-development mini-mall along Route 1--may seem minor
when viewed individually. The overall effect of a number of
relatively negligible actions over time, however, is usually
significant,

Cumulative impacts can be direct, indirect, or secondary.
They can have positive as well as adverse effects. Direct cumula-
tive impacts are the actual effects of the action. Indirect
impacts are the effects that are indirectly caused by the action.
For example, a house built along the shore may have the direct
effect of adding to the local tax base, and clearing of the
shoreline forest for the house construction. Erosion and loss of
'A habitat resulting from the clearing of the land are also direct
effects. Indirect effects of the construction include the erosion
of the building site, increased run-off to the bay, and loss of
wildlife habitat at the construction site. The placement of one

Italicized text is excerpted from federal guidance for the
Section 309 assessments.

house may have a secondary effect of influencing the building of
additional homes along the bay.

7.32 Available Information/Studies

For more than twenty years, the state has recognized the
significance of the incremental effects of development. In 1977
the Governor's Committee on Coastal Development and Conservation
and the Department of Environmental Protection (DEP) commissioned
a study of the cumulative impact of development on the Maine
coast. Among the recommendations in the consultant's report (LUC
1977) were suggestions that the state's environmental laws be
amended to require consideration of cumulative effects and that
municipalities include concerns for cumulative impact into their
comprehensive plans and develop land use control ordinances
linked to identified threshold capacities.

The 1977 study resulted in the addition of language to the
Coastal Wetland Law regulations and the Site Law that mentioned
consideration of cumulative impacts. By the early 1980s these
minor changes to state statutes seemed ineffective in the face of
the unprecedented development pressures on the Maine coast.

In 1985, the Coastal Advisory Committee of the Land and
Water Resource Council directed the Maine State Planning Office
to initiate a Cumulative Impact Project to address the problem of
unplanned growth and development in coastal communities. The
purpose of the multi-phase project was to document the effects of
incremental development on natural resources in selected towns as
well as to study the legal aspects of regulating incremental
development. Advisory boards were formed at the state and local
levels to make recommendations to the Legislature and Governor on
statewide growth management measures and to assess how the state
and towns could manage the cumulative effects of development.

The first phase of the Cumulative Impact Project documented
the effects of incremental development on the natural resources
of nine towns in York County. A series of maps were developed to
inventory and document changes in scenic areas, lands in conser-
vation-ownership, land cover, wetlands, groundwater resources,
and important wildlife habitats.

Subsequent studies examined the legal aspects of regulating
incremental development. The Southern Maine Regional Planning
Commission (SMRPC 1986) assessed the adequacy of local land use
regulations used to manage the cumulative effects of development
in the York County towns. The Marine Law Institute (Rieser and
Quintrell, 1987) prepared two studies for the Cumulative Impact
Project, a review of the policy, regulatory, and statutory
framework for addressing cumulative impacts in Maine and a review
of land use planning strategies employed by other states. In a
final report, Maine Audubon analyzed land use and impacts on
wildlife in the coastal towns of Machias, Trenton, Rockport,
Scarborough, and Damariscotta (Arbuckle & Lee, 1987).

The lack of policy or planning guidelines to provide a
context for land use and environmental laws and regulations was
cited by Rieser And Quintrell, (1986) as a major obstacle block-
ing effective consideration of the cumulative impact of proposed
development. The report maintained that permitting decisions,
made on a case-by-case basis, addressed only the direct impacts
of a project. Although state environmental regulations sought to
minimize the impacts of a project, sensitive resources were often
not adequately protected and the collective effect of'possible
future projects on the resource was not addressed.

One problem identified in the Rieser and Quintrell report
was the difficulty in determining the threshold at which point
the resource could no longer withstand further degradation. For
example, three homes along a sand beach may not sufficiently
discourage a colony of least terns from returning to nest in the
area, but how many more homes would the bird colony tolerate
before abandoning the beach? The report concluded that the most
effective management of incremental development was through
planning that identified sensitive resources and design of
appropriate regulations that would treat all landowners equitably
while preserving the integrity of the resource.

The project summary (Dominie and Scudder, 1987) concluded
that negative cumulative effects are caused by haphazard growth
and can be minimized by planning to anticipate and direct growth
to appropriate sites. The summary identified the following to be
effective elements common to other states' growth management
initiatives:

(1) instituting a clear, state land use policy;
(2) assuring local land use planning is tied to
implementation programs;
(3) identifying sensitive resource areas, other areas of
statewide significance and assuring their protection
through acquisition and regulation;
(4) assuring predictability in local and state permitting
processes through explicit review criteria and perfor-
mance standards; and
(5) making a long-term commitment at the State and local
levels to funding and supporting land use management.

The 1987 Cumulative Impact study led to passage of growth
management legislation committing the state to supporting local
comprehensive planning.

7.33 Assessment of Problems & Issues

a. Natural Resources Threatened by Cumulative Impacts

Natural resources are directly and indirectly changed by the
cumulative impact of development and growth. Coastal and inland
waters, habi'tat and populations of native plants and animals,
air, scenery and open space are some of the natural resources
diminished by the negative consequences of many environmental
alterations over time.

(1) Water Quality. Growth and development along the coast
have contributed to pollution of fresh, ground and tidal waters.
As increasing numbers of users tap into groundwater aquifers and
develop lots in coastal areas, problems with saltwater intrusion,
and bacterial and other types of pollution are more common. Run-
off from roads and development impair the water quality of fresh
surface waters, making them unsuitable for drinking water. At
least 30 percent of the productive clam flats along the Maine
coast are closed to harvesting each year by bacterial pollution
from septic tanks on shorelands, land run-off, boat traffic, and
other sources. The pollution is from both point and nonpoint
sources, and primarily the result of human activities.

Several islands have been designated by the federal Environ-
mental Protection Agency, at the request of the State, as sole
source aquifers, since most islands have a single lens of ground-
water. Many coastal peninsulas also have single groundwater
aquifers available for groundwater supply. These areas are very
vulnerable to the cumulative impacts of human activities on
groundwater quality.

According to the State Nonpoint Source Management Plan
(1989), 0.7% of the surface area of Maine's lakes and ponds, is
predicted to be extremely vulnerable (a 1 ppb increase in phos-
phorus level is predicted to occur in 10 years) to nonpoint
source pollution. Approximately 11.2% of the surface are of
Maine's lakes and ponds are classified as highly vulnerable (a 1
ppb increase in phosphorus is predicted to occur within the next
50 years) to nonpoint source pollution associated with develop-
ment. Most of the fresh water lakes and ponds in the coastal zone
fall into one of these two categories.

The vulnerability of tidal waters to loading of land-based
pollutants depends on the "flushing rate" of the area, the
composition of bottom sediments, the landcover in the coastal
watershed, the amount and toxicity of the pollutants and other
factors. The DEP has classified tidal waters according to dis-_ Ilk,
solved oxygen content, bacterial levels, and benthic community
diversity. Presumably, those waters with the higher standards,
Classes SA and SB, are more vulnerable to the cumulative impacts
of water pollution from development than Class SC waters which
allow industrial discharges and set minimal standards to support
aquatic life. River waters are classified according to a similar

system by the DEP. Priority coastal water bodies that are im-
paired or threatened by nonpoint source pollution are identified
in the State Nonpoint Source Management Plan.

(2) Water Quantity. Growth on islands and in communities
dependent on groundwater is affected by source limitations,
including contamination by salt water intrusion caused by exces-
sive draw down as well as sea level rise. Although not a current
concern, diversion of freshwater from coastal rivers could alter
estuarine environments along the coast.

(3) Habitat. Groupings of environmental factors (e.g.
climate, salinity, soils, water) that support assemblages of
plants and animals sharing similar requirements are called
habitats. Habitat for terrestrial plants and animals as well as
marine life may be threatened by the collective effect of activi-
ties on land and in tidal waters. Gradual alterations to the
landscape may eventually destroy or alter the ability of the
habitat to maintain a diversity of species. For example, although
one house built on the edge of a deer wintering yard may have
minimal effect on the resident deer population, the disturbance
from additional houses may drive deer from the area.

Marine habitat is affected by changes in water quality as
well as direct physical disturbances (such as the placement of
moorings or dredging). Many harbors along the coast have rela-
tively barren bottoms and few fish species, Historical accounts
relate that flounder and groundfish were once plentiful in these
areis; today, the cumulative impact of harvesting, boat traffic,
water pollution, dredging and other activities may have resulted
in degraded harbor habitats unable to support a diversity of
marine life. These are only a few examples of the impact of human
activities on habitat--virtually any change to coastal lands or
waters will effect habitat.

(4) Air Quality. High levels of ozone pollution result from
the automobile emissions of the millions of visitors to the coast
each summer. This seasonal decline in air quality affects human
health as well as health of the environment. In Acadia National
Park, researchers have documented the devastating effect of high
ozone levels combined with the coastal fog on the maritime black
spruce forest.

(5) Scenic Quality. Visual resources are important because
the landscape defines people's sense of place and perception of
environmental quality. The effect of the cumulative impact of
growth and development is often first noticeable visually, before
other more subtle environmental impacts are apparent. Scenic
quality is central to defining the character of a place ("Maine--
The Way Life Should Be" is proclaimed by billboard at the state
line in Kittery) and can attract tourism, new settlement, invest-
ment and other activities important to the state economy.

A
9

(6) Open Space. Undeveloped land or open space is a re-
source most treasured when it is gone. Maine people have tradi-
tionally relied on undeveloped land to provide opportunities for
hunting, paths to coastal waters, and walking. Subdivision of
shorelands, farms and forests reduces opportunities for free
access across private lands. Development of open space also
affects wildlife and many native species, such as amphibians, not
specifically protected by law. Subdivision of agricultural and
forest lands lowers the potential of the land to contribute to
the traditional agricultural and forestry economic base of the
community. Most (90%) of the coast's open space is in private
ownership; public and nonprofit conservation holdings represent
only about 6 percent of the coastal land acreage.

b. Activities Threatened by Cumulative Impacts

In addition to natural.resources, public access and suitable
sites for water-dependent use may be threatened by cumulative
impacts.

(1) Public Access to Coastal Waters. Less than 7 percent of
Maine coastal shorefront is publicly-owned. Transfers of land
ownership along the coast have resulted in subdivision of water-
front parcels and loss of traditional accessways for shellfish
harvesters, hunters, and recreational users of the coast. Loss of
public access to the coast is a sociological effect of the
cumulative impact of development. For instance, a property owner
may.tolerate a few visitors to a private beach. After adjacent
private beaches are closed to public access, and the neighborhood
converges on the remaining open beach, the'permissive landowner
may decide that too many people are using the beach and as a
consequence, restrict access. Public access to the beach has been
lost because of the cumulative effect of visitation pressure
moved from several beaches to a single beach.

(2) Coastal Sites Suitable for Water-Dependent Use.
Boatyards, marinas, fish docks, deepwater anchorages and busi-
nesses associated with commercial fishing are typical examples of
activities dependent on waterfront locations. If harbor areas are
developed with motels, condominiums, and other nonwater-dependent
businesses, the eventual economic effect may be to crowd out
traditional maritime related businesses from the area.

(3) Shellfish Harvesting. Approximately 30 percent of
Maine's shellfish flats are closed because of pollution from
point and nonpoint source pollutants. Many activities are
incompatible with the maintenance of open shellfish areas because
of pollutants associated with the activities or federally
mandated closures. For example, shellfish closures are mandatory
around mooring fields of a certain size. Inadequate septic
systems and straight pipes account for bacterial pollution of
many productive shellfish flats. Overboard discharges, which
account for many closures, are allowed if no reasonable
alternative exists.

C. Identification of Growth Areas

Many coastal islands, estuaries and harbors have experienced
obvious effects from the cumulative impacts of development.
Increased recreational use of Maine harbors has created
competition for moorings, impaired water quality in some areas,
and raised concerns about the future of traditional uses of the
waterfront. A case study comparing development scenarios was
commissioned for the Island Institute (Brown et al., 1987). The
study examined Carvers Harbor on Vinalhaven Island and concluded
that such communities must clearly state their fishing community
identities in their comprehensive plans.

Tidal shores along estuaries and shorelands along inland
freshwater ponds and lakes are focuses of building activity and
changes in land and water use in Maine's Coastal Zone. The 1990
U.S. Census shows growth occurring all along the coast over the
past ten years, a by-product of the real estate boom of the
1980s. Lincoln and Cumberland counties experienced the highest
growth rates.

The number of occupied year-round homes in the coastal zone
doubled between 1960 and 1990. overall pressure on the land,
indicated by average numbers of residents and housing units per
square mile, is highest in the southern section of the coast.
This can be seen by comparing cities and towns in the southern,
central and downeast segments of the coast as shown on the chart
below.

PRESSURE ON THE LAND
MAINE'S COASTAL ZONE CITIES AND TOWNS

d. Adequacy of Institutional, LecTal & Policy Mechanisms

(1) Scope

Rieser and Quintrell (1986) list three major obstacles to
effective consideration of cumulative impact in Maine:

--lack of cumulative impact guidelines to direct state
permitting decisions
--lack of consideration of cumulative impact by local
municipalities in directing and permitting development.
--lack of baseline information on resources, and on other
projects in the area under review or permitted by state
and local agencies.

These obstacles still exist, although recent growth
management efforts that promote local comprehensive planning have
improved anticipation of the cumulative effects of development at
the local level.

(2) Existing Programs & Effectiveness

A. Mapping and Information Collection. State collection of
baseline information is improving. State natural resource data
collection is now coordinated through a Geographic Information
System (GIS) headquartered in the Department of Conservation. The
Department of Inland Fisheries and Wildlife (IF&W) is responsible
for mapping wildlife habitats. Maine Geological Survey maintains
sand dune, wetland, aquifer, and marine habitat maps. The
Department of Marine Resources is mapping marine resources
sensitive to oil spills such as shellfish beds and spawning
areas. Coastal wetland locations have been inventoried by the US
Fish and Wildlife National Wetland Inventory (NWI); freshwater
wetlands were mapped by the Maine Wetlands Inventory (IF&W) as
well as the NWI.

Effectiveness--- The state Geographic Information System
(GIS) will eventually improve accessibility and usability of
state natural database for use in permitting and planning.
Scarcity of funds hampers entry of information on the state GIS
as well as other mapping and inventory efforts. Existing wetland ro
and marine habitat maps are incomplete and need field
verification. Existing information on pollutants and other
indicators of environmental health of nearshore coastal waters is
inadequate to constitute a baseline against which the
environmental cumulative impacts of development can be assessed.

B. Water Quality Monitoring. Several Maine state agencies
monitor waters impacted by pollution. The Department of Human
Services and the Department of Environmental Protection (DEP)
monitor groundwater wells. The Department of Marine Resources
(DMR) Shellfish Program monitors the water quality in shellfish
areas along the coast. The DEP identifies waters impaired and
threatened by nonpoint source (NPS) pollution and regulates,
through permits, direct discharges to rivers and coastal waters.

Effectiveness--In general, the effectiveness of the water
quality monitoring efforts by state agencies is limited by the
scarcity of state funds and the vast area, 3,600 miles of
coastline, to be covered. Approximately 30 percent of Maine's
shellfish flats are closed because of pollution from point and
nonpoint sources, as well as, the lack of monitoring information.
Existing information on coastal water quality and sources of
pollution is scattered between several agencies. Monitoring of
nearshore waters for pollutants other than bacteria is
inadequate.

The Lakes Program. Inland lakes, including lakes in the
coastal zone, have been evaluated by the DEP Division of
Environmental Evaluation and Lake Studies (EELS) according to a
lake vulnerability index. The index is a predictive model which
evaluates the lake or pond hydrologic characteristics and the
rate of watershed development during the period of 1984-1986, and
estimates how long it will take for phosphorus concentrations to
increase in the pond or lake by I part per billion (ppb).

Effectiveness--- The criteria developed by EELS have been
well received by towns and have enabled planning boards to
anticipate the cumulative effects of lake watershed development
on lake water quality. Extension of this predictive approach to
estuarine areas and estimation of the effect of nutrient-loading
activities on coastal water bodies is being considered.

Partners in Monitoring. Several state agencies including
the DEP, DMR, State Planning Office a.id the University of Maine
Cooperative E.@tension service have pooled efforts to coordinate
coastal water quality data collection and volunteer water quality
monitoring efforts.

Effectiveness--- The effort is a recent one and it is too
early to judge effectiveness, however, coordination has improved
among the agencies and volunteer water quality monitoring is
expected to provide information on nonpoint sources of pollution
and other cumulative effects of development.

NonPoint Source Pollution Program. The Department of
Environmental Protection administers the nonpoint source program
and develops Best Management Practices to cover a range of land-
based activities.

Effectiveness--- The existing Nonpoint Management Plan lists
few coastal waters as priorities for improvement. Several
demonstration projects, notably in Casco Bay and in Passamaquoddy
Bay have addressed nonpoint source pollution in tidal waters. The
state Nonpoint Management Plan is currently being revised to
include a more complete listing of coastal waters that are
threatened or impaired by NPS pollution and to include best
management practices that address marine-related activities.

D. Habitat Protection. The Department of Inland Fisheries and
Wildlife is responsible for managing habitat for game and nongame
wildlife species as well as marine mammals, migratory birds and
freshwater fish. Marine and estuarine habitats such as shellfish
flats, eelgrass beds, subtidal areas used as spawning grounds, or
tidal creeks important for alewife and smelt runs are protected
generally under marine resource (DMR), wetland (DEP), and
submerged land (DOC) regulations.

Effectiveness- The habitat management efforts of IF&W and
DMR are implemented through a network of field wardens and
biologists. Scarcity of funding jeopardizes these efforts.
Reluctance of the IF&W to promulgate maps and guidance in order
to implement habitat provisions of the Natural Resource
Protection Act has delayed local protection of important habitat
areas.

Critical Areas Program. The Critical Areas Program of the
State Planning Office identifies and maps occurrences of
significant features throughout the state and works with private
landowners to ensure protection of the site.

Effectiveness- The program has been very effective over the
last ten years, however, recently, the state legislature has
temporarily suspended the program because of lack of funds.

Natural Heritage Program. The Natural Heritage Program of
the Department of Economic and Community Development inventories
important natural communities around the state. During the
development of comprehensive plans, Maine towns are encouraged to
map all Critical Areas and Heritage Sites as well as consult with
IF&W and DMR to identify habitats of significance.

Effectiveness- The program effectively distributes habitat
information to towns to assist with planning efforts.

D. Open Space Protection. Tree Growth and Farm and Open Space
tax designations are the major incentive programs at the state
level to encourage open space land use. The state Land for
Maine's Future Program and private land trusts throughout the
state are actively protecting land through conservation easements
and acquisition.

Effectiveness- The Land for Maine's Future Board has
effectively committed its initial $35 million to specific
acquisitions. A referendum last November failed to provide
additional funding. Concerns that conservation ownership will
reduce town tax base have caused several coastal towns and
private groups to oppose conservation acquisitions.

(3) Existing Regulations & Effectiveness

Comprehensive Planning and Land Use Regulation Act (30-A
MRSA �4311-4344) and the Growth Management Program. Enacted in
1988, this statute mandated towns to develop comprehensive plans

and implementation programs that were consistent with the state
growth management goals and coastal policies. By outlining a
program of local comprehensive planning and implementation of
local land use controls, the Act intended to avoid the adverse
effects of unplanned growth.

In December, 1991, the Legislature removed provisions which
required preparation of local comprehensive plans and
implementation programs according to state deadlines. Funding for
the Office of Comprehensive Planning, charged with providing
planning grants and technical assistance to towns, and with
reviewing local plans was withdrawn. The Maine Coastal Program
continues to provide the OCP with funds for technical assistance
for plan and ordinance development by coastal communities,
however, and for local technical assistance by the Regional
Planning Councils.

Effectiveness- Until the withdrawal of funding implementing
this act, the Growth Management Program was very effective in
assisting towns preparing comprehensive plans. The "Guidelines
for Maine's Growth Management Program (1988)" issued by the
Office of Comprehensive Planning direct communities to inventory
natural and cultural resources, examine trends and issues, and
project future development patterns in an effort to create a
context for local planning efforts and the implementation of
ordinances, regulations and other programs.

As of January 1992, 86 of the 144 coastal towns have
received funding to develop cemprehensive plans; 33 to-gns have
submitted their plans and 9 have received state approval. Eight
towns have received funding to pursue implementation of their
plans through local ordinance development. Comprehensive planning
is no longer a mandate for local municipalities, but many towns
are committed to continuing the comprehensive planning process in
order to direct future growth.

The Growth Management Program encouraged the inclusion of
regional policies in local comprehensive plans. These regional
policies were to promote coordinated protection and use of shared
regional resources such as aquifers, lakes or estuaries. A
project is underway in Casco Bay to implement these regional
policies with consistent local shoreland ordinances in the towns
surrounding the Bay. Other efforts to coordinate ordinance
development have been less successful due to local politics.

Most permitting decisions affecting land use are made at the
local level according to criteria established by the particular
town. Guidelines to assist local planning boards with inclusion
of cumulative effect considerations in their permitting decisions
are not available, but a major emphasis of the state growth
management program was to encourage and assist towns with
identification of sensitive resources and design of programst
ordinances, or performance standards that protect these
resources. Since the first towns to complete comprehensive plans

are just now embarking on implementation programs, the effective-
ness of these efforts is yet to be determined.

Land Use Regulatory Act (12 MRSA �681-689). Areas of the
state in unorganized territories, including 5% of the land within
the Maine Coastal Zone and over 200 coastal islands, are under
the jurisdiction of the Land Use Regulatory Commission (LURC).
LURC has the authority to plan and regulate land use and has
prepared a comprehensive plan. The plan, currently undergoing a
major update, creates protection and management zones and Wetland
Protection Subdistricts. LURC requires a 75 to 125 foot shoreline
setback from water bodies.

Effectiveness--- LURC planning efforts are generally
effective, however, LURC staff have recognized the need to
develop state policies for coastal islands, which are more
vulnerable than other coastal areas to the cumulative impacts of
development.

Natural Resources Protection Act (NRPA) (38 MRSA S480).
NRPA regulates certain activities in resource areas of state
significance including wetlands, Great Ponds, rivers and streams,
significant wildlife habitat, fragile mountain areas and sand
dunes. Concerns for cumulative impacts are stated in the findings
statement which concludes:

"The Legislature further finds and declares that the
cumulative effect of frequent minor alterations and
occasional major alterations poses a substantial threat
to the environment and economy of the State and its
quality of life."

Effectiveness -- The Department of Environmental Protection
issues rules to implement the Natural Resource Protection Act.
Rules clarifying the application of the Natural Resource
Protection Act to sand dunes state that "special attention will
be paid to the cumulative impacts of activities on dune systems"
(Coastal Sand Dune Rules, Chapter 355, revised 1/4/88). Project
reviews are to include consideration of expected changes in
shoreline and storm hazards within 100 years as well as percent
coverage of the lot by existing and proposed development. Rules
pertaining to development on Great Ponds specifically mention
cumulative impact, especially with regard to the placement of
docks. There are no criteria or guidelines to enable the DEP to
implement the scenic protection criteria of NRPA.

The habitats identified by the Natural Resources Protection
Act (NRPA) as having state significance do not include all
habitat areas sensitive to cumulative and secondary impacts of
growth and development. The statute requires mapping of certain
habitats before they can be protected by NRPA and this provision
is proving to be administratively burdensome. The Department of
Inland Fisheries and Wildlife is mapping "significant wildlife
habitats". These habitats as narrowly defined by the Natural
Resource Protection Act (NRPA, 38 MRSA 5480-B) include:

"habitat for species appearing on the official state or
federal lists of endangered or threatened species; high
and moderate value deer wintering areas and travel
corridors as defined by the Department of Inland Fish-
eries and Wildlife; high and moderate value waterfowl
and wading bird habitats, including nesting and feeding
areas defined by the Department of Inland Fisheries and
Wildlife; critical spawning and nursery areas for
Atlantic sea run salmon as defined by the Atlantic Sea
Run Salmon Commission; and shoreland nesting, feeding
and staging areas and seabird nesting islands as de-
fined by the Department of Inland Fisheries and Wild-
life."

The Wetland Protection Rules (Chapter 310, 6/13/90), include
a "No Unreasonable Impact" standard that provides for consider-
ation of the effects of a proposed project on wetlands beyond the
project's physical boundaries, and the cumulative effects of
frequent minor alterations of the wetlands resources. Small
wetlands under 10 acres in size and certain classifications of
wetlands are unprotected by the Wetland Rules.

Permit-by-Rule Program. Permit by Rule procedures allow an
applicant to bypass the standard NRPA permit process providing
that the proposed project meets special criteria and
incorporates performance standards or best management practices
designed to mitigate disturbance. Before beginning work, the
applicant must file a notice of the project with the DEP. Unless
notified to the contrary within 14 days by the DEP, the project
can proceed. These 'permits' are valid for two years.

The DEP has adopted Permit by Rule Standards for the follow-
ing activities: disturbance of soil material adjacent to a
wetland or water body; intake pipes and water monitoring devices;
maintenance repair and replacement; moorings; movement of rocks
and vegetation by hand; outfall pipes; riprap; crossings (utility
lines, pipes and cables); stream crossings (bridges, culverts and
fords); maintenance, repair & minor modification of state
transportation facilities; and restoration of natural areas
(3/23/91).

Effectiveness--- The Land Bureau of the DEP records Permit by
Rule applications on a computer data base in an effort to track
the frequency of projects in an area. Despite this effort, the
cumulative impacts of many small projects in an area, which
individually may have minimal impact on environmental quality,
can eas-ily be overlooked in the review of Permit by Rule
activities. Some activities which may be covered by the program
may have significant impacts on water quality or other values.
Compliance with permit by rule standards is rarely checked and
the program depends on the verity of the applicant's information.

Site Location of Development Act (38 MRSA, 5481-490). The
act requires review of projects with a building footprint in
excess of 60,000 square feet, 10 or more units of housing, or

subdivisions in excess of 20 acres. The intent of the act is to
regulate the siting of certain types of development in order to
protect the natural environment, groundwater resources in
particular. Secondary and cumulative impacts are to be
considered. Before issuing a permit, DEP obtains project review
by other state agencies (including the Dept. of Human Services,
Division of Health Engineering; Dept. of Transportation; Soil &
Water Conservation Commission; DOC, Maine Geological Survey;
Dept. of Inland Fisheries and Wildlife).

Project approval is contingent upon the developer demon-
strating that the proposal meets specified criteria. Department
of Environmental Protection rules (Chapter 375, 9/90) require
that proposed projects fit harmoniously into the existing natural
environment, without adverse impact on existing uses, scenic
character, or natural resources.

Effectiveness--- Although cumulative and secondary impacts
are to be considered, guidelines for applicants or regulators to
address cumulative and secondary effects of development, do not
exist. Without clear guidelines and definitions, permitting agen-
cies generally make decisions based on direct impacts of develop-
ment and remain reluctant to hinge permitting decisions on
cumulative impact considerations.

Submerged Lands Act (12 MRSA 5558-573). The act authorizes
the Bureau of Public Lands to lease state-owned submerged
(including marine lands) lands for the purposes of filling,
dredging or erecting structures.

Effectiveness--- The Submerged Lands Program of the BPL
considers the cumulative impact of a proposed activity on the
existing fisheries during the review process. Recently, the
Bureau of Public Lands (BPL) rejected an application for a marina
in Bass Harbor on the grounds that further recreational marina
development would adversely impact the health of the traditional
fisheries in the harbor. According to the BPL, the harbor had
reached a threshold of appropriate development.

Local Ordinances. The Mandatory Shoreland Zoning Act (38
MRSA �435-448) and the Subdivision Law (30 MRSA �4401-4407) are
implemented with local ordinances that comply with state minimum
regulations. An intent of shoreland zoning is to avoid the
effects of cumulative impact by providing protection to sensitive
resources with the setbacks and the resource protection
designation.

Effectiveness--- State minimum regulations do not include
specific provisions or guidelines for the assessment of
cumulative impacts. Municipalities are required to develop
ordinances consistent with state coastal policies which encourage
consideration of cumulative and secondary impacts of development;
however, most local land use decisions are made on a case by case
basis and do not consider future impacts or impacts beyond
municipal boundaries.

The Maine Coastal Program has funded Coastal Coordinators in
Regional Planning Councils along the coast and a Shoreland Zoning
Coordinator at the Department of Environmental Protection to
provide technical assistance with shoreland zoning ordinance
development. The Shoreland Zoning Coordinator at DEP reviews
towns ordinances for compliance with the state minimum
guidelines.

7.4 Federal CZMA Programmatic Oblectives -- Control Cumulative
Impacts

Develop, revise or enhance procedures or policies to provide
cumulative and secondary impact controls.

* Establish or improve coastal planning processes which
address the cumulative and secondary impacts of future growth by
identifying areas of rapid growth and which contain sensitive
coastal resources, assessing anticipated cumulative and secondary
impacts, and establishing appropriate land use controls and
mitigation measures to protect valuable coastal resources.

* Establish or improve procedures for the consideration of
cumulative and secondary effects in project/permit review deci-
sions and infrastructure and land acquisition programs.

7.41 Options for Enhancing Coastal Planning Processes

Establish a program of comprehensive watershed planning
and protection with coastal watershed districts, in-
cluding non-point source reduction, public education
efforts, water conservation, and volunteer water quali-
ty monitoring.

Develop special area management plans that provide for
natural resource protection and sustainable economic
growth in areas of significant concern.

Consider adoption of a uniform permit renewal date for
point source dischargers (NPDES permits) within each
major coastal watershed to facilitate estimates of
total pollutant loading in coastal waters and enhance
planning for the assimilative capacity of estuaries and
embayments.

Develop funding sources to sustain and implement com-
prehensive planning and technical assistance efforts to
communities.

Conduct threshold indicator studies to assess the
tolerance of defined ecological units to incremental
development.

Develop sustainability/carrying capacity criteria for
individual coastal areas, land and water.

Develop review criteria for towns to assess cumulative
impacts of proposed developments on natural resources.
The Department of Environmental Protection developed a
technical assistance guide for evaluating phosphorus
loading to inland lakes. Similar guidance is needed for
assessing nonpoint source pollution impacts of
shoreline and coastal watershed development on water
quality.

7.42 Options for Improving Project & Permit Review
Decisions

Establish local waste management districts to take
responsibility for ensuring that septic systems as well
as public sewage treatment plants are functioning
properly.

Establish a schedule of fees to be paid by point and
nonpoint dischargers which discharge directly into
bays, estuaries and the ocean, for use for water quali-
ty monitoring, toxic cleanup, and remediation and
prevention projects.

Activate the DEP's estuarine monitoring project and
find stable sources of funding for water quality moni-
toring by DEP and DMR.

Formalize a cooperative agreement to share information
regarding sources of pollution and pollutants of con-
cern between DMR, DHS, DEP and municipalities.

Improve enforcement of environmental regulations by
increasing funding and staffing. Increase penalties for
violations of statutes. Formalize coordination between
state agencies responsible for enforcement in coastal
areas and local officials.

Improve procedures by which state agencies notify local
governments of permit applications and decisions (espe-
cially permit by rule decisions).

Change Permit-by-Rule regulations to require before and
after photographs of the proposed alteration and sworn
statements of compliance with permit conditions.

Revise Maine's wetland regulations to include
protection of significant small wetlands.

Improve review of state and local coastal permit
applications by region or for the coast as a whole
(e.g. by a regional review board or coastal commis-
sion).

Investigate sources of funding to accelerate natural
resource and permit data entry on the state GIS.

Add specific language and definitions of cumulative and
secondary impacts to state environmental laws and
regulations (NRPA, Permit by Rule, Shoreland Zoning,
Site Location, LURC).

Develop guidelines/criteria for assessment of cumula-
tive impacts for municipal planning boards and state
agencies.

Develop a strategy and policies to protect natural
areas that are sensitive to impacts of growth and
development. Identify areas (such as coastal islands)
in the marine and estuarine environment that are
priorities for protection.

Refine the state water quality classification guide-
lines to include more specific water quality designa-
tions than the current broad categories.

Conduct a coast-wide scenic inventory and develop
guidelines for the implementation of the scenic re-
source criteria of the Natural Resource Protection Act.

Expand the significant habitat criteria of the Natural
Resource Protection Act to include sensitive natural
resource areas in the estuarine and marine environment.

7.43 Baseline for MeasurincT Progress

Build-out studies

Carrying capacity assessments and threshold indicators

Changes in baseline environmental databases
(e.g. wetland inventories)

Using marine and estuarine species as water quality
indicators

7.5 Available Studies/Information

Arbuckle, J. and M. Lee, 1987. "The Cumulative Impacts of
Development in Maine: A Study of Habitat Changes in Five Coastal
Towns, The Maine Audubon Society for the Maine State Planning
Office, Augusta, ME.
Brown, K., K. Kirkland, D. Perkins, 1987. "Protecting
Maine's Working Waterfronts: Lessons from California Applied to
Maine with a Case Study of Vinalhaven, Maine," Island Institute,
Rockland, ME.
Department of Environmental Protection, 1989. "State of
Maine, Nonpoint Pollution Assessment Report," Bureau of Water
Quality Control, Department of Environmental Protection, Augusta,
ME.

Dominie, H. and J. Scudder, 1987. "Land Use and Cumulative
Impacts of Development, A Study Summary," Maine State Planning
Office, Augusta, ME.
Droege, M., 1987. "The Cumulative Impacts of Development in
Maine: A Study of Habitat Changes in Five Coastal Towns," Maine
Audubon Society for Maine State Planning Office, Augusta, ME.
Land Use Consultants (LUC), 1977. "Cumulative Impact of
Incremental Development on the Maine Coast," prepared for Maine
Department of Environmental Protection and Committee on Coastal
Development and Conservation, Augusta, ME.
Office of Comprehensive Planning, 1988. "Guidelines for
Maine's Growth Management Program," Office of Comprehensive
Planning, Maine Department of Economic and Environmental
Protection, Augusta, ME.
Rieser, Alison, 1987. "Managing the Cumulative Effects of
Coastal Land Development: Can Main@b Law Meet the Challenge"?
Maine Law Review Vol.39:321;
Rieser, A. and J. Quintrell, 1986. "The Cumulative Impacts
of Development in Southern Maine: Management of Cumulative
Impacts: An Analysis of Legal and Policy Issues," Marine Law
Institute, Center for Research and Advanced Study, University of
Southern Maine, for the Maine State Planning Office, Augusta, ME.
Southern Maine Regional Planning Commission, 1987. "The
Cumulative Impacts of Development in Southern Maine: Assessment
of Municipal Capability to Manage Growth," Maine State Planning
Office, Augusta, ME.
State Planning Office, 1986. "Coastal Management Policy
Guidelines," Maine Coastal Program, State Planning Office,
Augusta, ME.

Section 309 Assessment

8. SPECIAL AREA MANAGEMENT PIANNING

Advisory Committee: Natural Areas & Natural Resources
Agency Contacts: Committee

Jim Bernard, Maine State Planning Office
Fran Rudoff, Office of Comprehensive Planning/DECD
Hank Tyler, Critical Areas Program/ SPO
Craig Ten Broeck, Bureau of Public Lands/DOC
Al Hutchinson, IF&W
Seth Barker, DMR
Caroline Elliot, Land Use Regulatory Commission/DOC
Rich Langton, DMR

Public Interest Contacts:

Maine Municipal Association
Maine Audubon Society
Casco Bay Estuary Project

Special Area Management Planning

CONTENTS

8.0 SUMMARY

8.1 Maine's Key Coastal Management Policies

8.2 Federal CZMA Legislative Objective

8.3 Federal CZMA Assessment Characterization

8.31 Definitions and Criteria
8.32 Use of Special Area Management Planning in Maine
8.33 Maine Coastal Areas Potentially Benefitting from
Special Area Management Planning

8.4 Federal CZMA Programmatic Objective -- Implement Special
Area Management Planning

8.41 Next Steps
8.42 Available Mechanisms & Effectiveness
8.43 Options for Improvement

8.5 Available Information/Studies

[jr.sam] 1/14/92

8.0 SUMMARY

The 3,600-mile coast of Maine is marked by fertile estuaries
and bays, dramatic headlands and craggy islands, expansive tidal
flats and scenic vistas. A myriad of state agencies manage the
water and land resources along the coast in cooperation with 144
individual town governments and numerous federal agencies. As
population continues to migrate to coastal areas and uses of
coastal waters and lands intensifies, coastal water pollution,
declines in fisheries, conflicts among users of coastal waters
indicate an urgent need for tools to coordinate land and water
use decisions.

Special area management plans (SAMPS) are used to
coordinate and improve protection and management of important
coastal resources while sustaining appropriate economic activity.
Estuaries and embayments, islands, fishing grounds, and
significant aquatic and upland habitats, are areas along the
Maine coast that could benefit from special area management
planning and other regional planning initiatives.

Accomplishments

Current special area management planning efforts in Maine
include the Casco Bay Estuary project, the Saco River
Corridor, and the St. Croix Joint International Commission.

Problems

Coastal areas of special concern which have local or state
significance have not been systematically identified and
mapped.

Regional resources often span several towns and local land
use decisions and designations are rarely coordinated among
towns. Consideration of future cumulative and secondary
effects of present day decisions on areas of special natural
resource value are not guided by a coherent management
framework.

Growth management guidelines, issued by the state to assist
municipalities with comprehensive planning, encourage the
inclusion of regional policies in local comprehensive plans,
but funding is not available to provide technical assistance
to implement regional policies.

Towns have no strong regional entity to assist them with
planning on a watershed basis.

State agencies need to coordinate management of coastal and
marine resources.

8.1 Maine's Key Coastal Management Policies Relating to Special
Area Management Planning (38 MRSA 1801)

MARINE RESOURCES MANAGEMENT. Manage the marine envi-
ronment and its related resources to preserve and improve
its ecological integrity and diversity of marine communities
and habitats, to expand our understanding of the productivi-
ty of the Gulf of Maine, and to enhance the economic value
of the State's renewable marine resources.

STATE AND LOCAL COOPERATIVE MANAGEMENT. Encourage and
support state and municipal management of coastal resources.

8.2 Federal CZMA Legislative Oblective

� 309(a)(6) Preparing and implementing special area management
plans for important coastal areas.'

8.3 Federal CZMA Assessment Characterization

Identify areas of the coastal zone subject to use conflicts that
can be addressed through special area management planning.
Criteria for selecting these areas should include:

The area includes significant coastal resources that are
being severely affected by cumulative or secondary impacts
from coastal growth.

There is a multiplicity of local, state and federal authori-
ties which prevents effective coordination and cooperation
in addressing coastal development on an ecosystem basis.

There is a history of long-standing disputes between local,
state, or federal agencies over certain coastal resources
which have resulted in protracted negotiations over the
acceptability of proposed uses.

There is a strong commitment at all levels of government to
enter into a collaborative planning process to produce a
definitive regulatory products.

A strong state or r-gional entity exi,3ts which is.willing
and able to sponsor the planning program.

8.31 Definitions and Criteria

Special Area Management Plans are defined by the federal
Coastal Zone Management Act as follows: "comprehensive plans
providing for natural resource protection and reasonable coastal-
dependent economic growth containing a detailed and comprehensive
statement of policies; standards and criteria to guide public and
private uses of lands and waters; and mechanisms for timely
implementation in specific geographic areas within the coastal
zone."

Estuaries, embayments, and islands are types of areas along
the Maine coast which could benefit particularly from special
area management planning. They are areas of significant natural
resource value as well as important areas for residential,
commercial and recreational development. Islands, because of
their isolated and contained nature, are particularly vulnerable
to the impacts of human use. Estuaries and embayments often span
several political jurisdictions and are subject to use conflicts

Italicized text is excerpted from federal CZMA guidance
for Section 309 Assessments.

between recreational and commercial water users, and degradation
of natural resources because of habitat loss and pollution.

The need for coordinated management and conservation is
greatest in those areas of the coast under the most development
pressure and intensive use of the natural resources by commercial
and recreational fishermen, boaters, visitors and residents. The
other criterion -- occurrence of significant natural resources
and features -- is addressed in several studies.

"A Preliminary Listing of the Noteworthy Natural Features in
Maine" (The Center for Natural Areas, 1976) inventoried distinct
features of significance, such as soils, plants, geologic
formations and invertebrates. "The Protection Priorities Plan"
(Reed & D'Andrea, 1973) identified geographic regions in the
coastal zone worthy of protection because of the quality,
diversity and integrity of the natural communities. Among the
areas identified by Reed and D'Andrea were: Cobscook Bay, Down
East Coast, Little Kennebec Bay, Indian River, Pleasant Bay,
Petit Manan, Tunk Lake, Long & Bartlett Islands, St. George
River, Upper Sheepscot River, Back River, Little River, Machias
Bay, and Merrymeeting Bay.

In the early 1980s the Maine Department of Marine Resources
nominated a site in mid-coast Maine to the National Marine
Sanctuary Program. The proposed site extended seaward from the
mouths of the Kennebec, Sheepscot, and Damariscotta Rivers; and
Johns and Muscongus Bays, including the waters around and
westerly of Monhegan Island. The nomination was based on the
outstanding natural resources in the area and proximity to
research facilities.

The North American'Waterfowl Management Plan (USF&WS, 1989)
identified Cobscook Bay and Merrymeeting Bay and the Lower
Kennebec as focus areas for conservation efforts. The Maine
Rivers Study (DOC 1982) identified tidal segments of several
coastal rivers as Class "A", that is, having natural and
recreational resources with greater than state value: Dennys
River, East Machias River, Kennebec River, Merrymeeting Bay
rivers, Machias River,Narraguagus River, Penobscot River,
Pleasant River, and the Sheepscot River.

8.32 Use of Special Area Management Planning in Maine

The Penobscot Bay Resource Plan (SPO, 1972) was an early
effort to develop a regional plan for a coastal area. The plan
contained maps illustrating the natural features and sites
sensitive to development in the area. Information detailing the
local history, population and economic trends was included. The
plan recommended broad changes in state land use policy, but was
ineffective in actually achieving coordinated regional management
of Penobscot Bay resources. At the time, local communities and
state government lacked the comprehensive plans, local ordinances
and state environmental regulations necessary to influence land
use.

More recently,"The Penobscot Bay Conservation Plan" (IF&W,
1987) inventoried marine wildlife sites in Penobscot Bay and
included management guidelines for specific wildlife habitats.
The report also made recommendations for integrating marine
wildlife values into coastal resources planning.

Other areas with a multitude of owners have improved manage-
ment with interlocal agreements and commonly expressed goals. The
Saco River Corridor Commission, initiated in the 1970s, to manage
land use along the Saco River with agreements between local
governments. The Cobbossee Watershed District, formed in 1971, is
a more complex arrangement between 9 towns within a watershed
that includes 28 lakes. The district sets regional water quality
goals and works with town and individual landowners to promote
practices which protect water quality.

The St. Croix International Waterway Commission, an interna-
tional commission established by the State of Maine and the
Province of New Brunswick, works with the state and provincial
governments and towns bordering the waterway to encourage appro-
priate economic growth and to maintain the region's common
heritage. The commission is preparing a management plan in
cooperation with the jurisdictions to establish management goals
and define a common vision. Implementation of the plan will
include coordinated management of water and land resources along
the St. Croix from East Grand Lake to Passamaquoddy Bay.

The Casco Bay Estuary Project is a National Estuary Program
initiated by the federal Environmental Protection Agency in 1990
to address management issue in Casco Bay. The Project will
develop a management plan for the bay that addresses sources of
water pollution as well as land use practices and regulation.

8.33 Maine Coastal Areas Potentiallv Benefitting from
Special Area Management Planning

The following areas should be given special consideration
for Special Area Management Planning:

Merrymeeting Bay and the Kennebec River Estuary (largest
freshwater tidal ecosystem north of the Chesapeake Bay)

Penobscot Bay and Islands

Cobscook Bay (protection priority for the state)

Frenchman Bay (tourism development and Acadia National Park)

Maquoit Bay (valuable shellfish resource in mid-coast Maine)

Mid-Coast Estuaries (Sheepscot, Damariscotta, Medomak, St.
George-- relatively intact ecosystems with valuable natural
resources and strong local fisheries threatened by major
increases in population and changes in land use.)

8.4 Federal CZMA Programmatic Oblective -- Implement SiDecial
Area Management Planning

Develop and implement special area management planning in coastal
areas selected by above criteria.

8.41 Next Steps

Evaluate marine resource areas identified by the DMR and
coastal wildlife areas identified by IF&W for ecological
sensitivity and productivity; determine the need for coastal
biological reserves to protect significant areas.

Evaluate special area management planning candidate areas
for suitability as demonstrations projects. Criteria should
include: vulnerability,' management need, resource value,
local interest and support, and regional significance.

Evaluate the possible role of Heritage Coastal Area
designation in special area management planning.

Determine the most suitable organizational mechanism for a
coastal watershed management partnership. A mechanism needs
to be sought which involves all affected and interested
parties yet addresses town concerns about loss of local
control.

Identify the roles of participating towns, regional planning
commissions, State and federal agencies, and the Maine Land
and Water Resources Council in the development and
implementation of special area management plans.

Develop a public participation strategy.

8.42 Available Mechanisms & Effectiveness

Environmental Laws -- The Natural Resource Protection Act
and the Site Location of Development Act are the chief State
environmental statutes regulating major development activities
and protecting coastal wetlands, sand dunes, wildlife habitat and
other areas of special significance. Most land use decisions,
including shoreland zoning designations, are made by
municipalities. In the absence of a management framework (such as
may be provided by local comprehensive plans) that allows
consideration of future cumulative and secondary effects of
present day decisions on special areas, it is generally necessary
to make permit decisions case-by-case. Management of special
coastal ecosystems such as estuaries and embayments is fragmented
and unfocused as a result.

Heritage Coastal Areas -- Heritage Coastal areas are areas
"containing an assemblage of geological, botanical, zoological,
historical or scenic features of exceptional state or national
significance (MRSA Title 5 �312 Section 3316)." Established as

part of the Critical Areas Program in the State Planning Office,
Heritage Coastal Area designation is a potential tool for
identifying coastal areas with state significance. Several
Heritage Coastal Areas have been nominated to the Critical Areas
Advisory Board. The expense of the requirement that the State
Planning Office notify each landowner in the proposed area 60
days before designation has prevented any designations.

Coastal Watershed Districts -- In 1990, the state legisla-
ture passed an act allowing the formation of coastal watershed
districts. The purpose of coastal watershed districts is "to
protect, restore and maintain water quality and aquatic resources
of coastal harbors, bays, estuaries and other coastal waters and
to manage and conserve the land and water resources of coastal
watersheds within the jurisdiction of these districts."

Responsibilities of coastal watershed districts include
initiating and coordinating research on aquatic resources and
coastal environments, planning restoration projects to improve
water quality within the district; working to coordinate ordi-
nances and regulation within the watershed district; and adoption
and implementation of coastal protection, management and restora-
tion plans. No coastal watershed districts have been formed to
date. Comprehensive Land Use Planning and Land Use Regulation
Law -- This law requires municipalities to develop comprehensive
plans for State approval. Growth management guidelines, issued
by the Office of Comprehensive Planning (OCP) to assist
municipalities with meeting the provisions of the act, en@,ourage
the inclusion of regional policies in local comprehensive plans.
Coordination of land use ordinances and resource protection
measures around estuaries and embayments thus are potential plan
features.

Regional Planning Commissions (RPCs) -- Regional planning
commissions and councils of government are quasi-governmental
agencies funded by federal, state and local governments. They are
accountable to the Department of Economic and Community
Development/Office of Comprehensive Planning for State-funded
activities. The RPCs were created under state statute to advise
local governments and promote regional planning and
intergovernmental cooperation. RPC boundaries may not necessarily
correspond with the boundaries of special areas such as estuaries
or aquifers.

8.43 Possible Options for Improvement

Develop protocols for coordinated review of all
environmental permits within designated special management
areas.

4 Develop model regional zoning regulations for special
management areas.

Develop and add a coastal natural resource database to the
State Geographic Information System (GIS).

8.5 Available Information/Studies

Fraser River Estuary Management Program. "A Guide to the
Coordinated Review Process".
Jacobson, B. 1987. 11 US/UK Exchange Quoddy Area Consulta-
tion, Roosevelt-Campobello International Park External Threats
Report," Maine Coast Heritage Trust, National Park Service, U.S.
Department of the Interior, Washington, D.C.
McPhee, M.W., 1989. "Implementing Area Designations in the
Fraser River Estuary," Coastal Zone'89, Vol. 1, pp 245-257.
Olsen, S. and V. Lee, 1984. "Rhode Island's Salt Pond
Region: A Special Area Management Plan," The Coastal Resources
Center, University of Rhode.Island, prepared for the Coastal
Resources Management Council, Providence, RI.
Reed & D'Andrea, 1973. "Protection Priorities Plan," Pre-
pared for The Nature Conservancy, Reed & D'Andrea, Land and Space
Planning, South Gardiner, ME.
Southern Maine Regional Planning Commission, 1984. "Wells
National Estuarine Sanctuary, draft Management Plan," prepared
for the Maine State Planning Office, Augusta, ME.
St. Croix International Waterway Commission, 1990. "St.
Croix International Waterway", SCIWC, St. Stephen, New Brunswick.
Wells National Estuarine Reserve Management Plan, 1990
update.
Woodward, S., A. Hutchinson, and M. McCollough, 1987. "The
.Penobscot Bay Conservation Plan", Endangered and Nongame Wildlife
Project of the Maine Department of Inland Fisheries and Wildlife
prepared for Maine State Planning Office, Augusta, ME.

Inventories of Coastal Resources requiring protection:
Fefer, S.I. and P.A. Schettig eds., 1980."Characterization
of Coastal Maine," Office of Biological Services, U.S. Fish and
Wildlife Service, Newton Corner, MA.FWS/OBS-80/29.
MIFW, 1989. "Significant Fish and Wildlife Resources of Mid-
Coastal Maine", Significant Fish and Wildlife Resources of York
County," Maine Department of Inland Fish and Wildlife, Augusta,
ME.
The Nature Conservancy, 1988. "An Atlas of Coastal Maine's
Endangered and Rare Features, Historic and Archeological Sites,
Significant Wildlife Habitats," Maine Coastal Program, Maine
State Planning Office, Augusta, ME.

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