[From the U.S. Government Printing Office, www.gpo.gov]
aines Co tal rogram PROGRESS REPORT January 1 to June 30f 1985 Banaor Eastport -. .......... *--,........: achias ---- --------- Augustat" Bar Harbor "Okland Portland Kittery HT 393 M2 M35 JAN-JUNE 1985 -3 Oepartment MaineState Planning Office MAINE'S COASTAL PROGRAM Progress Report January 1 to June 30, 1985 Prepared by the State Planning Office Submitted to The National Oceanic &'Atmospheric Administration Office of Ocean & Coastal Resource Management Washington, D.C. 20235 us NOAA'CoEst Poe, 80%ttla 22 - A01:4 SC 29405- "Financial assistance for preparation of this document was provided.by the MAIM COASTAL PROGRAM, through funding provided by the U.S. Department of Commerce, Office of Ocean & Coastal Resource Management, under the Coastal Zone Management Act of 1972, as amended." CONTENTS Page Highlights of the Reporting Period ................................. 1 Section 1. Work Program Progress Report - 1984-85 Award Task 1.A Improvinq the Enforcement of the Shoreland Zoning Law ..................................... 3 Task 1.B Core Law Enforcement & Administration (DEP) ..... 5,- Task 1.C Provision of Technical Assistance by the RPCs ....................................... 10 Task 1.D Land Use Litigation Fund ....................... 10 Task 1.E Maine Municipal Association ..................... 10 Task 2 Waterfront Revitalization ...................... 11 Task 3 Interagency Coordination ....................... 14 Task 4 Local and State Program Administration ......... 15 Task 5.A Coastal Investment Strategy .................... 15 Task 5.B Peatland Research & Management Strategy ........ 16 Task 5.C Sears Island Development ....................... 16 2. monitoring & Enforcement Activities ...................... 19 3. Wetland/Estuary Report ................................... 21 4. Fisheries Management Activities .......................... 22 5. Hazard Management Activities .............................. 24 6. Urban Waterfront & Commercial Harbor Projects ............ 25 7. Coastal Access Activities ................................ 32 8. Permit Procedure Simplication ............................ 32 9. Activities Related to Protecting & Restoring Cultural Coastal Resources ............................... 32 Page 10. Coastal Energy Impact Program Report ..................... 34 11. New Memoranda of Understanding ........................... 34 12. Coordination & Administration of Fdderal Review Process .................................................. 35 13. Public Participation Activities .......................... 36 14. New Publications Report .................................. 38 15. LCP's (not applicable to Maine) 16. Changes to Coastal Zone Boundaries & Management Authorities .............................................. 39 17. Report on Changes in the State's Management of Coastal Resources and New Coastal Initiatives ............ 39 18. Major Coastal Issues ..................................... 42 19. Equal Opportunity Report ................................. 46 20. SPO Organization Chart ............................ * ...... 47 APPENDIX Exhibit A - Coastal Advisory Committee Minutes, Meetings of 1/8/85 and 4/11/85 ................. 48 Exhibit B - SPO Advisory Bulletin No. 3 .................... 53 Exhibit C - Wells National Estuarine Sanctuary, Advisory Bulletin No. 2 ........................ 60 Exhibit D - Federal Consistency Log ........................ 63 Exhibit E - Executive Order 17 FY 84/85 .................... 64 Exhibit F - Circuit Court Ruling on Sears Island ............ 65 'HIGHLIGHTS OF THE REPOMM PERIOD 0 Major steps to improve enforcement of the Shoreland'Zoni@g Law were successfully S!@!Tleted. (See pages 3 and 40) (3 0 3) (2) (A) (B) Shoreland zoning workshops sponsored by the Coastal Program attracted 160 local officials representing 80 municipalities. An educational video-tape of the review process for permit applications was produced and made available. Twenty-three local code enforcement officers were certified to prosecute local land use violations in District Court under Rule 80K. 0 The Board of Envirorunental Protection asked the Attorney General's Office to initiate legal Tct-ion against Old Orchard Beach's approval of a 16 story condominium. (See pages 10 and 19). (303) (2) (A) (B) The 142-foot high structure was approved by the Town under variance proceedings despite a 70-foot height restriction in its Shoreland Zoning Ordinance. The Attorney General found that the State had no legal recourse under existing statutes and declined to intervene. A local landowners association is appealing the town's decision. o The Sand Dunes law was upheld in Superior Court in the first case to challenge its constitutionality (see page 19). (3 0 3) (2) (A) (B) The Hall Case involving a cottage built at Popham Beach was subsequently appealed to the Maine Supreme Court, which upheld the State but referred the case back to Superior Court. 0 The U.S. District Court ruled that the environniental impacts of the Sears Island Cargo Port Project had been adequately assessed (See page 16 (303) (2) (C) However, on August 8 the U.S. Federal Court of Appeals in Boston overturned a January ruling by Judge Edward Gignoux and remanded the case for a full environmental impact statement. 0 The State showed its commitment to envirormental protection through new legislative enactments (See pages 21 and 40). (303) (2) (A) (B) (C) (E) A new wetlands law establishes a program to regulate alteration of freshwater wetlands ten or more acres in size. Several significant legislative measures will help protect groundwater resources from pollution. Administration of the Shoreland Zoning Law and the Alteration of Rivers and Streams Law was transferred to the Department of Environmental Protection. Municipalities were authorized to adopt maritime activity zones. Critical Areas Program surveys were funded by the State for the first time, and a Maine Rivers Crant Program was established. 0 The State hosted a major NationalSymposium on Wetlands Management (see page 21 ). (303) (2) (A) (B) Maine's wetlands and regulatory system provided case study material for 350 participants from throughout the country. -0 Rockland's Fish Pier received a green light from the City Council (See page 25 (3 0 3) (2) (C) (E) This decision paves the way for completion of the last of the seven fish pier development projects planned with Coastal funds. � The State assured protection of Great Duck Island (See page 39 (3 0 3) (2) (A) This island had long been considered a top acquisition priority by the Department of Inland Fisheries & Wildlife. � Governor Joseph E.'Brennan issued an Executive order providing for coordination of a consistent State position in federal hydropower licensiN proce,edings. (see page 40 (3 0 3) (2) (F) The Order directs the Executive Secretary of the Land & Water Resources Council to mediate any disagreements among State agencies regarding comments submitted to the Federal Energy Regulatory Commission (FERC) or an applicant for a federal hydropower license. It also establishes that the official position of the State is that established through the decisions of the Board of Environmental Protection and the Land Use Regulatory Commission. -2- SEMON 1 Work Program Progress Report Task 1-A: Improving the Enforcement of the Shoreland Zoning Law 0 Shoreland Zoning Assessment Follow-up'Thchnical Assistance The coastal regional councils have completed the technical assistance phase of the Shoreland Zoning Assessment and Technical Assistance project. A program of regional workshops and individualized technical assistance was designed specifically for each region based on the findings of the shoreland zoning administration and enforcement assessment completed in January. A total of fifteen workshops held throughout the coastal area were attended by 160 local officials representing 80 municipalities. Individual assistance was offered to each community which was identified as having administrative or enforcement weaknesses. Approximately 50% of the communities took advantage of this opportunity. 0 Shoreland Zoning Workshop Video-M3pe Three regional councils collaborated to produce a shoreland zoning video-tape. The video shows the review process of a shoreland zoning permit application by the planning board and a variance request hearing by the board of appeals. This video-tape will be available for loan from each coastal regional council and the State Planning Office. 0 Rule 80K Workshops and Certification The Maine Municipal Association completed the "Rule 80K Enforcement Handbook" in March and presented a series of 6 workshops throughout the State in May. The handbook served as the basic text for the workshops and for the certification exam which was administered by the Department of Human Services. The day-long workshops covered the handbook material and provided detailed information on the rules of evidence and other important components of court case preparation. The workshops were attended by 158 local officials representing 124 municipalities. At this time, 60 code enforcement officers (CEO) have taken the certification exam; 23 have passed the exam and received official certification. The handbooks and a video-tape of a certification workshop are available from the Department'of Human Services to any CEO who would like to become certified. The availability of the handbooks was publicized in the most recent SPO Advisory Bulletin. Handbook requests are processed by the SPO and the Department of Human Services. 0 Shorelc@vA Zoning Tlechnical Assistance Staff at the SPO, DEP and the regional councils provided technical assistance to communities on shoreland zoning matters throughout the six month reporting period. The SPO handled approximately 300 telephone calls during this period. Fifteen municipalities filed shoreland zoning ordinance amendments with the SPO. The majority of these amendments were minor chang'es or clarifications of administrative and land use standards provisions. -3- CEO takes new court. 'imle seriously By Marty Le Blanc @_Ggunquit will get its first taste of Harold and Loretta Drelinger of s new rule of the Maine District Morrison Lan; also were served with a Court Civil Rules when six Ogunquit notice of gning violations. residents defend actions the code en- Accord g to Eichenblat, the couple forcement officer says are against town built a deck on their house even though zoning ordinances. he building permit did not allow it. CEO Maurice Eichenblat recently deck, he said, overlaps a setback riled suit against the six residents for a erea. Eichenblat is seeking the removal variety of alleged zoning violations If the deck and a fine. ranging from a too-large garage to an , The Drelingers would not comment Jdlegally built retaining wall. gn the case and their attorney, Sheila ,Fine, could not be reached. These are the first violations Eichen- Richard Luccini, Julianne Thurlow -blat has brought to court under the and Madalynnc Preston are three Rthers named in Eichenblat's suits. .0ew rule, 80K, which allows CEOs to prosecute minor land-use violations. Eichenblat claims Luccini, of Angela Festa of the Berwick Road is @helmstbrd, Mass., built a closed-in porch on a Marginal Way home not happy with the action against her without the proper permits. Jeffrey and said that Eichenblat is being petty. Lind, a contractor hired by Thurlow, ,Festa,isr charged with rebuilding her, ienovated a bathroom in Thurlow's garage, six inches -by one foot larger Highland Avenue home without the than allowed on the building permit. proper permits. Eichenblat also has ichenblat said the garage now crosses Oarged that Lind threatened him into a setback area. When he went to inspect the work. According to Festa, the six inches of I Lind also is named in a suit against -ihe garage in question are completely Preston. According to Eichenblat, ?n her property and are not a hazard lind built an extra deck on the Preston aid her .Pr problem to anyone. She & home without the proper permits. A contractor was not able to build the retaining wall that incorrectly diverts faorage the original IN6-foot-by-18- -off into a neighbor's yard 0t,size and had to enlarge it. water run Festa said she would like to settle the also was built without a permit. 4asc out of court, but added that she Eichenblat wants the building per- ffiit changed to allow the deck and will refuse to' take down the overhang !V I as the summons requqsts. wants the nine-foot-high retaining wall Jacqueline Bevins, owner of Jackie's removed. vestaurant on Shore Road, also was Neither the Thurlows nor the unhappy with Eichenblat's actions. 11restons would comment on the She had requested a meeting with 'pharges. Their attorney, Sheila Fine, kichenblat and the Board of Selectmen iind Lind were not available for com- to discuss the matter Tuesday night. tnent Bevins withdrew her request, however, J@ut would not' comment on the masons. Bevins is.beingcited fordisplayinga danvas banner outside her restaurant, which is a violation of the town's sign regulations. _,E 0 Publications The State Planning Office printed 100 copies of the "Handbook"for Local Planning Boards: A Legal Perspective" and "A Handbook for Municipal Boards of Appeals". Also printed were several hundred copies of the "Minimum Shoreland Zoning Ordinance", the "Chapter 796" and the "Handbook for Local Code Enforcement Officers". The availability of these publications was announced at workshops and in the SPO Advisory Bulletin. Task 1-B: Core Law Enforcement & Administration, DEP Report With the summer construction season ahead, the number of applications received by the Land Bureau in the first quarter of 1985 increased 58 percent over the number for the previous quarter. Coastal Wetlands Law applications rose from 56 to 111. As a result, substantial staff time was given to development of a prioritization system to focus field inspections 'on coastal projects.with the most potential for impact or located in particularly sensitive areas. The second quarter of 1985 saw the beginning of the construction season, and near record level numbers of project applications. Coastal zone projects examined by the Land Bureau showed a trend t owards larger and more complex projects. Citizen complaints in the coastal zone more than doubled, from 55 during the previous quarter to 139. The number of complaints in southern Maine more than tripled, accounting for nearly three-fourths of the total. Despite the dramatic increase in complaints the Bureau managed to complete more compliance inspections during this quarter than previously. Tables 1-4 on the following pages show DEP permit applications, compliance inspections, enforcement actions, complaints and consent agreements in the coastal area for the January 6 to June 30, 1985 reporting period. Major Land Bureau issues arising during this period were: 0 Belfast City Park Beach Project The Army Corps of Engineers proposed the construction of a beach erosion control project in Belfast, designed to create a 5501 sand beach and control erosion through stabilization of the adjacent upland area at Belfast City Park. The project involves the construction of a permanent groin/rock revetment system and the use of coarse sand fill. Environmental concerns include accelerated erosion caused by the groin structure, sand transport due to wind and wave action and loss of softshell clam habitat. 0 0gunquit Shoreline Stabilization Project The Army Corps of Engineers received a positive consistency determination as well as water quality certification from the Department of Environmental Protection for a shoreline stabilization project on Marginal Way in Ogunquit. -5- Table 1 Table 2 DEP PER14IT APPLICATIONS IN TIM COASTAL AREA DEP CQVLIANCE INSPECTIONS & ENFOFCff4ENT ACTIONS IN THE COASTAL AREA January 6 to June 30, 1985 January 6 to June 30, 1985 Law/Type Downeast Central Southern Total Site Location Law: Region/ Compliance 'Consent Agreement Feferra-ls Residential 3 13 33 49 Statute Inspections, Attempted Resolved Pending Atty. General Industrial 3 1 17 21 Mining 0 0 5 5 DOWNEAST Solid Waste (solid waste projects noted below) Retail Facilities 2 3 7 12 Site Law 9 2 0 2 0 Wetlands law 1 0 0 0 0, Wetlands Law: Solid Waste Law 17 0 0 0 1 Sea Walls 1 2 5 8 CENTRAL Piers, ramps, floats 15 41 44 100 Dredging 3 5 14 22 Dunes 0 0 43 43 Site Law 2 0 0 0 0 Fill 3 7 11 21 Wetlands Law 3 0 0 0 0 Solid Waste Law 14 6 2 4 0 Solid Waste Mmogement SOMHERN Law: 7 6 15 28 Site Law 31 4 1 3 a Maine Waterway Conservation Wetlands Law 10 12 0 12 0 Development Act 0 4 3 7 Solid Waste Law 30 10 0 11 0 TOTAL 37 82 197 316 TOTAL COASTAL Site Law 42 6 1 5 0 Wetlands Law 14 12 0 12 0 Solid Waste Law 61 16 2 15 1 Table 3 DEP CCMPLAINTS IN THE COASTAL AREA January 6 to June 30, 1985 TOTALS 117 34 3 32 Status Downeast Central Southern Total Resolved 7 9 22 36 Pending 6 28 82 116 Deadfile 7 6 27 40 TMAL 20 43 131 194 M' MW 100 r0V MW OW OV 40 640V '90 AW 00, '*K1 Im NOUN so M60,60 M40AW MW 4040 0640,60 Table 4 CONSENT AGREENNTS IN THE COASTAL ZONE April I to June 30, 1985 January 6 to April 1, 1985 RESOLVED RESMVED Walter Wilson Saco permit violations siltation Town of Boothbay Boothbay Solid Waste Issues $1,500 penalty, site closure Town of Gardiner Gardiner $1,600 penalty, site closure PENDIM Site Iocation of Develop-nt PENDDG Claude Debois Saco Mining - no Permits Site Location of DeveloPment Gerald LeBrun Wells Gravel pit - no permits Harry Crooker & Sons Topsham Mining - no Permits Paul R. Bietle Freeport Coastal Wetlands/Sand Dunes Coastal Wetlands/Sand Dunes Edward McCarthy S. Portland Fill S. E. McMillan Company Yarmouth Portland Paving, Inc. S. Portland Fill Town of Wells Wells Harry Crooker Brunswick Fill Robert McAteer Biddeford W-Ateer Biddeford Fill Schatter Biddeford Enlarge Seawall LeFebvre Biddeford Enlarge Seawall Solid Waste Town of Wells Wells Bulldozing Claude DeBois Biddeford Enlarge Seawall Town of Jefferson Jefferson Town of Damariscotta Damariscotta City of Belfast Belfast Solid Waste Town of York York City of Biddeford Biddeford Abbott Bros. York Improper operation septage site Regional Waste System Scarborough Groundwater contamination City of Biddeford Biddeford Revision of past agreement Town of York York Groundwater Harry Crooker & Sons West Bath No permits Tbwn of Scarborough Scarborough No permits Town of Scarborough Scarborough Improper operation septage site Town of Yarmouth Yarmouth Improper operation City of Bath Bath Surface water contamination Town of Damariscotta Damariscotta operation, surface water contamination City of Belfast Belfast Grou:nd and surface water contamination 09b/ DEP Both Bane And Blessing To Towns by Stephen Bolis "The state statutes are for everyone, pears to be getting "too letter-of-the-law staff Writer though. I feel municipalities should have to technical in recent months" and has not follow the rules and regulations as much As tried hard enough to work with the towns Thu Department of Environmental Pro- indusry. If not more so," Warren said, and cities. tection Is often looked upon as "Big adding that governments should set an "While I total the DEP has been fair and Brother" by many municipal and industry example for the rest of the community. judicious, I feel it has not gone the extra officials, who feel the mammoth state The DEP chief administrator said the mile to find solutions for the communi- environmental agency too often flexes its Midcoast is not unique in its frequency of ties," Powell said. muscles and rides roughshod over commu- violating regulations established by the Powell noted that the recent problems at nities. state. the Rockland landfill were temporary With a staff of 230 and an annual budget Warren said municipal officials are kept problems and not standard practices. of $12 million, the DEP is seen as a lie said he Is concerned that an over formidable force that frequently cites cit- abreast of new rules and changes in rules aggressive attitude by the DEP could ies and towns for various violations of made by the department. He said the DEP cause a backlash which would lessen the environmental regulations. includes the Maine Municipal Association. agency's powers. Powell pointed out that The DEP's authority extends to several (Ito MMA acts as consultants to Maine areas which regularly puts it in conflict communities.) Warren said input is also other areas of the state are experiencing with local municipal governments and sought from regional planning core- imilar difficulties and that if developers businesses. Foremost among these; In the missions when discussions are held re- from throughout the state go to the local area, have been dumps and treatment garding the development of now regula- legistlature, the senators and repre- plants. tions. sentatives could throw out some laws The state agency was officially' created' "It's very public and open." he said which he considers important to protecting by the Maine State Legislature in 1972. "Some responsibility lies with the commu- the state's environment, Before then it held various titles beginning nities to be aware of statutes and regula- . Warren said the department tries to in 1941 when the Sanitary Water Board was tions." separate its enforcement responsibilities created by the legislature. Ten years after As an example, the DEP commissioner from its assistance functions. that board was founded, it was renamed said when the department's solid waste "When we're exerting our enforcement the Water and Air Environmental Im- regulations were recently overhauled, capacity we might be seen as wearing a big Provement Commission. That name was "tons" of copies were sent to the MMA stick, while at the same time we trying to shortened in 1967 to the Environmental municipalities and review organizations. help communities," Warren said. Improvement Commission and operated He said the department has spent count. for the next three years under that title. Going Too Far? less hours working with Rockland and The commission was upgraded to. a formal Municipal officials contacted for their Rockport to assist in their, solid-waste state department in 1972. opinions on the DEP were reluctant to management. The legislature has given the DEP the speak on the record, fearing repercussions. Warren admitted there are sometimes The recent problems with the Rockland communication problems and they stem, in power to enact regulations with the power dump, the Rockland treatment plant, the part, from turnover in municipal govern- of law. On its own the DEP can order Rockport dump, the Tom Sawyer landfill ment and from turnover in the DEP staff. dumps closed, put a halt to major devel- and local tanneries were all mentioned as "The first responsibility is to try to stop opments or subpoena witnesses to testify recent run-ins with the state. the environmental impact with enforce- at hearings. The Rockland City Council has had harsh ment action," he said. Conflict words to say about the DEP in past years Warren noted that he has been with the In an interview, the commissioner of the over the agency's opposition to the city's, department for 15 years and that a lot of DEP agreed that many times the DEP is efforts to move into an adjacent quarry progress has been made in cleaning up the looked upon with less than a favorable when the current quarry used for a landfill environment. He said the clean water act is attitudeby local government. was filled. one of the best examples of the impact on Commissioner Henry Warren said he can Regional planner Fourtin Powell said he environmental regulations. sympathize with local government officials is a strong supporter of the aim of the "It seems like everytime we solve a who feel the state is being a. nuisance by agency but that he has concerns about problem, another one pops up," he said. requiring conformance with Maine recent actions taken locally. Warren noted that there has been a environmental laws, but that laws must be "At the moment, the solid waste group dramatic reduction in the number of enforced and obeyed. seems to be overly zealous," Powell said. landfills which are in violation of DEP "We get complaints from municipalities "I have trouble saying that since I agree regulations. from time to time. I can sympathize with with the philosophy (of strong environ- "The state's goal is to work with the the financial constraints on communities," mental laws)." communities when we can and when we Warren said, noting that conforming to The Midcoast's planning consultant said can't we have to use the enforcement* these regulations can cost money. the solid-waste division of the DEP ap- powers," he said. The project consisted of the placement of an additional layer of armor stone along a 150 foot section of Marginal Way, (a walkway in the'shoreland area) and the construction of 150 linear feet of shore slope protection along an unprotected portion of the walkway. Environmental concerns included whether the stone would be placed at an appropriate slope to properly protect the area and loss of wetland habitat as a result of slope placement and excavation. 0 Worcester Landfill, Southwest Harbor The Worcester landfill is a private waste disposal site which has served the towns of Southwest Harbor, Bar Harbor, Mt. Desert and Trenton for a number of years. Leachate from the facility discharges to Marshall Brook which flows through adjacent Acadia National Park property. Attempts were made to resolve the problem through consent agreement, but negotiation failed to produce an acceptable schedule and plan for problem correction. The matter was referred to the Attorney General's Office in February for appropriate.action. 0 Viking Fish Farm, Brooklin This is a proposal to construct and operate a land based fish farm over 7 acres on Harriman Point, Brooklin, Maine. The project includes smelt tanks, fish raceways, icemaking, feeding, and processing facilities. Approximately 38 million gallons of seawater will be circulated through the raceways daily. Production is estimated at 1000 metric tons of Atlantic salmon annually. Wastewater disposal is the primary environmental concern. 0 Bangor Dam Hydroelectric Project, Bangor Swift River Company proposed to rebuild the existing Bangor Dam on the Penobscot River in Bangor to produce hydroelectric power. The project includes replacing and reconstructing the existing spillways, constructing a new gate and installation of 3 turbine-generator units rated at a total capacity of 25.5 W. Because of a spillway failure in 1976 tidal influence has resumed its, natural range approximately 3 miles upstream of the dam. Environmental concerns include the Atlantic Salmon fisheries, anadromous fish restoration program, American bald eagle (endangered species), flooding, rare plants, water quality, and historic places. 0 Regional Waste Systems Incinerator, Portland R.W.S. proposed to construct a 500 ton per day refuse incinerator to produce electrical power. The incinerator will accept waste from approximately 20 greater Portland area towns. Environmental concerns identified with the project include air quality, climate alteration, water quality and ash disposal. 0 Rockport Marine Inc., Rockport Rockport Marine proposed to place 3500 cubic yards of fill in Rockport Harbor to enlarge the boat storage area and to upgrade the existing pier. The marine habitat in the proposed fill area is thought to be of marginal quality. Environmental concerns include water quality, navigation, and marine habitat. -9- � Danton Tbwers Condominium Project, Old Orchard Beach Danton Towers is a proposed 16 story (142 foot) 163 unit condominium building located on a coastal sand dune in Old Orchard Beach, Maine. In addition to the 80 foot by 230 foot main structure two parking areas for 328 cars are proposed. The construction of the building will require the excavation-of 2700 cubic yards of sand from the sand dune system. Environmental concerns include the effects of a large development of the dune system,.sunlight, recreational use, and flooding. See also page 19 � flarborsid@ Condominiums, Scarborough E&R Development Corporation proposed to fill an area of coastal wetland and coastal sand dune on Pine Point to construct a condominium complex. The property would be filled to raise it above the 100 year.flood elevation. Environmental concerns include flooding, filling of productive wetland, alteration of a coastal sand dune, and recreational uses. � Fill at Thcmas Point Beach The DEP ordered the dumping of sand at Thomas Point Beach in Brunswick stopped because it was being conducted without a permit. An application subsequently was accepted for review. Task l.C: Provision of Technical Assistance by the RPCs See Task l.A, "Shoreland Zoning Assessment Follow-up Te chnical Assistance". Task 1.D: Land Use Litigation Fund No work was performed on this task during the reporting period. Task 1.E: Maine Municipal Association See Task l.A, "Rule 80K Workshops and Certification". _10- Task 2. Waterfront Revitalization Local waterfront revitalization projects funded for nine coastal communities under the Coastal Program were described in the previous Progress Report. The status of .these.projects is described below: BANGOR - Front Street Area Re-Use Plan, $ 21,700 grant This project has provided the following products: a base map of the study area, soils profile, site evaluation; a series of working papers discussing problems and opportunities, market and re-use feasibility, alternative development scenarios, and development plan and implementation strategy; property appraisals; and a memorandum to the City Council on costs and implementation. The study recommended immediate City acquisition of two key properties, one of which is the old petroleum tank farm. BAR HARBOR - West Street Harbor Park, $ 5,000 grant This project has provided preliminary engineering and cost estimates for repair and/or replacement of the failing granite retaining wall on West Street and development of a mini-park at the site. BELFAST - Waterfront Planning & Development Project, $ 18,750 grant Belfast's engineering consultants have provided five construction alternatives for repair of the City pier, together with construction and maintenance costs. A series of meetings was held, including two public hearings, and an alternative selected. Preliminary design and construction specifications were completed. Consultants also furnished a harbor plan, usage fees and other harbor management recommendations, and a harbor ordinance subsequently adopted by the City. Landside, Belfast received a waterfront plan and zoning regulations from their land use planning consultant, and held hearings on both. CASTINE - Waterfront Development Project, $ 15,450 grant Preliminary engineering and designs for proposed improvements to Castine's waterfront were prepared by the consultant working with the Local Harbor Improvement Committee. The Committee also conducted a pedestrian and traffic survey in the small but very congested village center/waterfront area. This project's next stage involves final local approval of improvements to the waterfront and acceptance of a strategy for financing the improvements. EASTPOIRT, CAIAIS, & LUBEC - Ferry Service Feasibility Study $8,000 grant & Coastal Development Strategy $ 3,000 Ferry Study: This study found strong potential demand for regularly scheduled waterborne passenger/vehicle service between Eastport and Lubec, especially during peak summer months. Water distance between the two communities is 2.8 miles, land distance by road is 40 miles. An active Committee comprised of area residents, businesses, and Eastport-Lubec ferry study completedby Marie Jones A draft report of a feasibility study for needed for Ferry Service B. A ferry could a ferry service in the Passamaquoddy Bay be retrofitted with a hydraulic transfer area, particularly between the communi- bridge, thus eliminating the expensive ties of Eastport and Lubec, has been pier requirements for Ferry Service B. completed. The firm of CE Maguire, Inc. In the report it is strongly recommended undertook the study. Key issues that that this option be studied prior to at- were considered included determination tempting to secure capital assistance for of the service needed, use of service, fare the construction of the Lubec and East- structure, resulting revenue estimates, port piers to accommodate Ferry Ser- Aetermination of capital cost required vice B. for vessel and facilities to implement the The capital costs of Ferry Service A service and annual cost estimates for would include the purchase of a 24-foot operating and maintaining the service. wide, 60-foot long barge at $75,000 plus Two types of ferry services were exam- the landside improvements at Sea Street ined: (1) a tug and barge service. designa- in Eastport. ted as Ferry Service A. which would tra- The capital costs of Ferry Service B verse the 2.8 mile course from the Lubec would include purchase of a used ferry public launch to Sea Street in Eastport such as the Rebel,- belonging to Casco in approximately 40 minutes, depart Bay Lines, estimated at S 100,000 plus from either short on the hou r an d cost major capital improvements to both the S3.00 per automobile; (2) 2 nine-cer ves- Lubec and Eastport docking areas sel, designated as Ferry Service B, which The potential sources of funding are would traverse the same 2.8 mile course dependent upon who would operate the in approximately 12 minutes, depart service: the State of Maine, the Eastport from either shore on the half hour and Fort Authority or a private operator. It cost S4.50 per automobile. is doubtful that a private concern would A market analysis of the two services be the operator. Either the State of indicates that, once implemented, aver- Maine or the Eastport Port Authority age rider ship would exceed the capacit- could operate the facility and issue reven- ies of either vessel A or B during the ue bonds at 107c per annum to finance months of operation, May through Sept- the capital improvements. The Eastport ember. Average daily demand for Ferry Port Authority is authorized by the Service A is estimated to be 96 vehicles State ofM&ine to issue revenue bonds per day while it is estimated 4 11 vehicles up to S6 million. per day would use Ferry Service B Rep. Harry Vost has investigated the Although demand is strong for @oth possibility that maintenance functions types of ferry services, the revenue from for the ferry boat could be performed at Ferry Service A is estimated to be $51, the W.C.V.T.I. Marine Center in Eastport. 1 000 per year, which would not be ade- I A ietter received by Vose from the De- quate to cover the estimated operating partment of Education indicates no and maintenance costs of S63,000 per problem legally for the school to provide year. Ferry Service B, which has shorter maintenance for a ferry boat. An agree- travel times, higher capacity and is more ment would have to be worked out with I competitive with the automobile, would Ron Renaud, Director ofW.C.V.T.I. Rep. generate an estimated surplus of approx- Vose has also contacted Senator George imately $96,000 per year pejor to the re- Mitchell's office and the Army-Navy tirement of debt service for needed capi- Surplus office in Augusta in hopes of Ul improvements. obtaining a surplus landing-craft vessel Capital improvements required in both or a vessel now in mothballs. Eastport and Lubec to accommodate The feasibility report is being studied Ferry Service B would be extensive. The by the Eastport Port Authority. pier requirements in both communities are estimated to cost three million do]- lays. The generated surplus would not cover the $400,000 for annual debt ser- Quoddy Tide's July 26, 1985 vice retirement. The Maguire report suggests in alter- native to the extensive pier requirements local officials directed the study by a consultant. This Committee is now seeking the financing needed to establish ferry service on a trial basis. Coastal Development: This cooperative.planning effort is the result of a strong desire on the part of coastal communities fronting on Passamaquoddy Bay to attract business and tourist trade. The communities share common problems, with low employment, underutilized natural coastal resources, and little tourism compared with other coastal areas further south or east. Both Maine and New Brunswick (Canada) communities are involved., A major accomplishment of this project was the organizing of a second annual Passamaquoddy Bay Area Planning Conference in St. Andrews, New Brunswick. The Maine Communities of Eastport, Calais, Lubec and Robbinston were represented along with the New Brunswick communities of St. Stephen and St. Andrews. State and Provincial government officials also attended the two-day conference, including Cabinet level representation from the Maine State Planning Office, and the New Brunswick departments of Tourism and Municipal Affairs. The Director of the State Planning Office, the New Brunswick Minister of Tourism and the Minister of Municipal Affairs were keynote speakers. ELLSWORTH - Dredging & Waterfront Feasibility Assessment, $2,000 grant Ellsworth undertook an assessment of its riverfront development potential in conjunction with its overall downtown revitalization planning effort. A local "Blue Ribbon" Committee is overseeing both planning efforts a'nd will present its final recommendations to the City Council later this year. The City hopes to compete for future Community Development Block Grant funds to implement its final recommendations. PORTLAND - Waterfront Park DesiD Project, $ 12,000 grant A waterfront park is to be located on the outer end of the city-owned Maine State Pier. Work completed under this coastal grant includes a structural feasibility analysis and recommendations regarding the pier itself, an analysis of needs and potential uses of a park-type facility, development of concept plans, and preliminary designs and cost estimates for three phases of park development. ROCKLAND - Waterfront Development Feasibility & Marketing Study $ 8,000 grant The City completed a marketing study which found that a city-owned, privately-operated marina facility could be viable if it provided a full range of services and accommodated 100 vessels. Available space will only allow about 40 vessel berths, so the city is looking for ways to enhance the feasibility of the proposal. -13- YORK - Fair Price Study for Town-Owned Moorings, $ 1,500 grant York's consultant prepared a preliminary draft report covering capital costs, operating costs and a sliding scale of charges for town-owned moorings for a five year period, based on a mooring plan prepared by the volunteer York Port Authority. At the-last minute, after much Town controversy and a complete change in Port Authority membership, the new Port Authority adopted a new mooring plan. 7he consultant subsequently provided the town with a summary of representative slip and mooring charges for selected harbors from Salem, Massachusetts to Boothbay Harbor, Maine, and a revised report reflecting the new mooring plan. Port Authority members intend to follow through with their own report to the Selectmen as part of their continuing harbor planning efforts. Task 3.A: Federal Consistency (See.Section 12) Task 3.B: Coastal Advisory Committee Committee members discussed statements of coastal activities and issues, prepared by individual State agencies as agreed at the previous meeting, at a meeting on January 8, 1985. It was recognized that many agencies are addressing the same. coastal issues from different perspectives (e.g. through regulation, planning, daily management, etc.) and that better coordination was needed. The SPO agreed to prepare an overall coastal priorities statement based on the individual agency statements. At this meeting the committee also was briefed on the new U.S. - Canadian Maritime boundary and its effect on oil and gas activities and fisheries management, the 1985-86 coastal program, and a proposed research symposium on the Gulf of Maine. On Apr@l 11, 1985 the Committee was briefed on anticipated funding levels and schedule for the 1985-86 coastal program, reauthorization of the Coastal Zone Management Act, coordination of coastal access funding, the 1985-86 local and regional grant programs, and Coastweek 185 activities. members also discussed their individual rankings of the twenty coastal issues in the Coastal Priorities Statement drafted by the State Planning Office, and reached a concensus on the six most pressing coastal management issues: (1) incremental development and growth management; (2) natural resource data base; (3) technical assistance, public education and enforcement; (4) economic planning and development; (5) public access to the shoreline; and (6) marine resource management. (See Appendix for Coastal Advisory Committee Minutes.) The final Coastal Priorities Statement was used to guide funding decisions for projects in the 1985-86 coastal program. It also was used by the Sea Grant Policy Advisory Committee, of which the coastal program manager is a member, to develop their long range plan. -14- The Coastal Advisory Committee currently is pursuing a major initiative to gain legislative support for increasing the State's commitment to enforcing environmental laws. Task 4.A: Technical Assistance & Local Grant Administration Local grants for waterfront revitalization and development 'are discussed under Task 2. A meeting of the local managers of these coastal projects was held at the State Planning Office on February 7, 1985. The agenda included presentations and discussion of the status of individual projects, followed by a roundtable discussion of waterfront problems and issues more generally. Issues of greatest concern were the need for local tax increases, economic development, unemployment, building support in face of local opposition, and competition between towns for cruise ships. Issue number 3 of the Advisory.Bulletin on coastal management activities was prepared during the reporting period for mailing the first week in July. Bulletins are aimed at informing local, state and federal officials of state developments and information affecting Maine. This issue included discussions of coastal management priorities and of highlights from the legislative session just concluded, as well as a feature article on the Portland waterfront (see Appendix to this report). Task 4.B: State Grant Administration The meeting of Special Award Conditions B-24 and Significant Improvement Benchmarks required by "Maine 1984-85 306 Financial Assistance Award Approval" (memo from Kathryn Cousins to James Burgess, May 9, 1984), was reported in the @revious Progress Report. Final Benchmarks required by that memo are described in this Progress Report as follows: Task 1A, Improving Enforcement of the Shoreland Zoning Law, page'3 Task 1B, Core Law Permitting and Enforcement, page- 5; Task 1E, Maine Municipal Association, page 10 Task 5.A: Coastal Investment Strategy 0 Work Item 1 -- The inventory of State and federal investment programs was completed during the reporting period. Results indicate few programs are directed specifically at the coastal region or at coastal resources. The exceptions include the Department of Marine Resources and Coastal Management related programs. An analysis will be completed examining: a) the distribution of public investment between coastal communities; and b) the impact of public investment on economic indicators in the coastal area. -15- � Work Item 2 -- A socio-economic characterization of the coastal area has been completed. This includes data on housing patterns, population shifts, and employment patterns. In addition, three economic indices were prepared. These include the Economic Health Index (EHI), a composite -measure of economic activity, unemployment, and income; the Trade Growth Index (TGI), a measure of growth in taxable consumer retail sales; and the Tourism Intensity Index (TII), a measure of restaurant/lodging sales as a percentag e of consumer retail sales. � Work Item 3 -- A characterization of coastal natural resources has been completed. This includes a description of resource development and use trends from both a coastwide perspective and a coastal regional perspective. � Work Item 4 -- This item is the development of guidelines for public investment policies in the coastal area. This will be achieved by considering the trends in the coastal area's demographic, economic and natural environments identified in work-items 2 and 3 and reviewipg past public investment practices and current potentials identified in work item 1. This work item is nearing completion. Task 5.B: Pedtland Research & Management Strategy See previous Progress Report. Task 5.C: Sears Island Cargo Port Development Work proceeded smoothly on this project until a ruling on August 8 by the First U.S. Circuit Court of Appeals vacated a January district court ruling, and required an environmental impact statement for the project and secondary development that might-be stimulated on Sears Island. This ruling came as the mainland access road to the causeway site and the access road to the port site on the island were nearing completion, three quarters of the dredging was complete, and preparation at the port site had begun. All work was stopped after the Court ruling except site preparation. This work was continued, with the consent of the Court and the Sierra Club, in order to complete sediment basins and other measures to prevent soil erosion. The Circuit Court ruling came at the same time the U.S. Coast Guard was processing the State's application for a bridge permit for the causeway to the island. Since the August Court ruling, several meetings have been held to coordinate preparation of the Environmental Impact Statement (EIS) for the project. The Federal Highway Administration has been designated lead agency in preparing the EIS and the Army Corps, Coast Guard, Economic Development Administration, and the Federal Railroad Administration are -16- ~0 ponder on ~'~4qde~4qc~qls~q!~'~~. . ~..~. way. from ~8qC ------- I'll" ~T~H~2qY~0q/DAY, APRIL 25. ~1~9~M R~ep~u~bli~qm~n Jc~i~=~r~qml ~2~4 PAGES As ~C~E~N~-~M ~ ~S ~ ~st~a~qie ~o~f~f~i~la~l~s D~C~, M~O~D~q@~6q@~)~,~t~o~,~%~8qT~d~e~c~l~s~l~t~t~o ~q"~2q�~2qears Island Project Progressing; ~to build a Site Preparation Bids Are R~6qtceived ~C~3~q2~6~P ~.~1 ~u ~.~b~q;~q:~q' to or ~c~a~u~s~' ~A~p~p~r~o~aad" I ~c~o~n~s~u~"~K~i~t~t~y ~11~1~3 Toni M~ail~l~oux Power several years ago ~Au~s a condition of d~red~g~--~.~ng of Me ~c~c~V area ~a~re ~3~q,~'~r~q7~,~q@ ~d~r~d~4q&~& ~10~1 ~qN P~' T.. weal, ago Department of ~th~e original sale, C~N~IP had to offer ~t~he land finished b~) ~J~o~o~e ~1. T~I~n~e dr~ed~g~m~i not ~l~ea~r~t Transports ~, ~. (DOT) Commissioner back to B ~L A it they decided no: to build a expected to be b~v ~e~t~, ru~t~@~ff ~er~w~a~y ~%~S~%~A Dana Connors announced the state was power generating plant at that location ~B d~a~tt could ~i We~ ~q!~q@ ~0qr~i ~q h ~,~q;~;~W~e `~q@ ~,~.~1~. D~6q=~t Jag ~t moving full-speed ahead on the Sears ~& A accepted ~the of~fe. and late ~l~as~: week d~e~!~&~@ KJ ~qYA~q/~?~2~q5 ~i~t~i~o~d to no",., ~i~o~n ~-~3 Island project despite an unfavorable the dee~dw~as recorded~s~: the ~Ua~ld~o~Cour~i~ty officials. G ~1~q;~q7~1. ~.~-~ard ~T~.. ~@~qi~l~t~n~r~d ~;~,~,~M~i~t ~l~o~r court ruling on the permit to., construction Registry of Deeds. The state is in ~t~he The ~r~o~e~y ~r ~n~era~l ~o~f~t~he~c~a~u~s~e~@~sy. process of beginning "friendly" ~res~i~o~q' ~q' Cargo port the ~ta~n~t ~M~t~o ~f ~q@~`~qp ard d T~u e~1~d~a ~Ya~.~1 ~qt~qe~Tb~V ~t~h~e Causeway matter me, force nd~e~m~n~a~l~io~n ~p~r~ocee~-~d,n~g~@ to ob~t~a~i~r the 50 work in ~L~h~a~: ~e ~c~o stem in to alter our approach to corn p~l~q;~t~ion of ~s~o re~s ~B L A ~L giving the state for the port the coa~s: ~c Droj ect ~2q=~W~d ~t~he I~!= d~ec~is ~. site. The condemnation is being done to Wide~, the I ~Z Wb~r~oU~g~@~t ~ta ~l~a,,~q@ On project, It Will ~n~o~t stop ~d~e~%~e~lo~pmen~t ~A~-~S~l~u~t - ... ~W~e feel we would be making a grave ~"c~ita~t ~u~w title." to continue C~l~ub~.~'~q@~t~q;~d~.~' error to delay ove~, all development until ~- The state has applied for a ~S- ~L~f ~qg~8qT Maine I ~-~th~e~i~tc~a~us~ew~ay issue ~I~- resolved . . . In discretionary grant ~1~1~0q@~q4~4q5~qF ~'~" ~P~q_ ~o~w~s ~c~o~.~i~n~p~a~.~"~D~i~t~, ~r~2qr ~T ~q!~%~S ~n~ce~, we're divorcing the causeway ~R~. ~M~r~, I# ~a~t~, ~C~o~r~n~n~u~s~s~) ~I~f~"~i u~t~su~e fro~r~. the rest of ~T~he overall project ~c~a-~=~_ ~S- ~p~o~r~t~a~t~io~n ~@~,~,~) ~k~6~l, d ~T~i~qihe~r Slate Connors said t ~8q1~q:~2q0 DOTS a" Monday. ~1~1~Y the That d~i~,orc Washington with representatives Of ~G,~,~a~r~d am ~r~n~e~m~@~e~, of the ~s~t~a~t for ~t~h~. Will ~v~I~n~. I ~8qv~8qi~0qb ~'~0q%~6qV ~qA~qlle~8qd illegal ~C~q_~_ ~.~1 ~M~. The ~c~oa~s, G ~t~he ~T~o~' Its r ~qZ~qZ~7~-~@~L~s ~1~_~2~:~@ ~- -~1 ~t~b~, ~%~ta for ~0qO~qL ~J~u~d~i~le G~q ~q5 ~8qP~8qe ~1. week~. r -Sea to fact a ~C~a Because ~qe ~6qv~l ~n~s~,~i~p~t ~O~n~, ~c~a ~1~C~6qV~qZ~qZ~q@~_ ~qW~t~io~n o~l the ~qt~qz~" ~- ~q@~qV~-~6~-~r ~P~, ~i~p ~b~.~.~. ~-~@~6q:~S~q, ~qZ~, u~W ~W ~1~6 ~F~q_~q_ C~q_ ~-~,~qF St ~'ate accepts Sears Island ruling~' ~J~9y The A~s~qw~L~at~ed Press Connors said most of the primary the state contract. ~4qW~qJ ~8qF~6q/~qt~8qW~qi~6qT environmen~ta~l effects of t~he project Stone. ~2~k~o~ing at ~81 State House State officials said Thursday they were weighed in less ~C~Ompr~e~t~hen~s~iv~e news C~on~s~2qr will n~o~t appeal a federal court ruling ~q@ ~Lence, said ~her group assessments that already have been would accept the C~O~nC~IUS~I~OnS Of ~Lhe against the planned deepw~ater Cargo 'Corn ~le~le~l ~, Said the~qI~nform~atio~n environmental impact statement ~I~t~iee~qled ~i~t~q@ ~H ~P~0~r~I On Sears Island, but will try ~- ~C mplete the impact even if it shows that the project stead to expedite the environmental statement mainly involves the e~f. would cause ~00 serious harm. Impact statement that the court fects of additional development that found lacking. t~he port project will invite. ~,~.~%~'e just want the proper env~i~ron~. e~n~tal laws followed.' she said, Meanwhile, 'the Maine chairwoman "It's the secondary environmental adding that allowing the pro~8q*t to of the Sierra Club denied that it op. limps, ~L~S that the finger is being point- proceed without the Impact poses Construction of the ~52~8~-mil~lion ed ~atC~qo~' the Commissioner said. Statement would se4 a dangerous ~na- ~qmro~nmental group's goal IS only to ~- t~iona~l precedent. project in any form, insisting that the ~C~o~r~qinors reiterated that his main n~qsure that the law is obeyed. concern is continuing the momentum In an immediate response, John of the project, on ~q'~qA~q'~qWch work began Melrose Of the ~qM~qa~qi~qnepor~ql Council, a "The issue in this case is not one of last year. He said be would seek to coalition of p~qub~qb~qc and Private groups ~96qk~q.~qt~6qn~2qc vs. the environment," said proceed with construction of t~qh~qe ~8qW ~6q@ronm~qtt~qing t~qhe project, said the y Stone, whose group claims I,- million ~qPo~qn terminal building while ie~qr~qr~qa Club had won only "a proce. ODD members in the state, the impact statement is being pre- dural victory" that would do little pared, except cause ~qc~qo~qs~qt~qi~qv~q-~qd~qe~qla s. He said Trans t~qion Commissioner An access road to the site is virtu- the recent ruling ~2q)eop~qi~qi~qr~76q@ ze~qs a ~q$2~q. Dana ~qV~qp~80qg~ql~ql~qa~ql~qors and Attorney Gen- - million grant that the Economic De~q. eral James E ally complete and Connors has said ve ent Administration was ex. ~q- Tierney said ar~qi~q'~qa~6qlpe~qal be intends to Complete s~qite-prep~qera- ~q1~q0 to the U.S. Supreme ~2qdourt wou~ql take ~qPe~ql~6q&~6qT~qto approve. ~qaring the im ct ron~qmenta~ql risks it left ~qi~qr~qushed- "A lower court said that we did the longer than pry tio~qn work that would com~ql~0q@u ~q- env~qi Statement that e ~qLhree~q-judge Us, Dredging at the site was Suspended rig~ql~qit ~qh~qi Circuit Court of Appeals in Boston t ng ~qI~qn opting not to prepare said was needed. earlier this summer and would not an e~qm~qironmen~qt~qa~ql impact statement, Although that w -ork is t~qh~qe resp~qons~qi- resume until ~qO~qc~qLober anyway under said Melrose. bil~qity of the federal government, Tierney said the state will be "an active pa~qr~4q@cipan~qt In the process." Connors said "we would make our case" for federal Officials to delegate to the lute the authority Ito prepare Me impact statement. ~q-17~q- cooperating agencies. The Environmental Protection Agency, National Marine Fisheries Service and U.S. Fish & Wildlife Service have been invited to be cooperators but have not yet responded. In addition to these meetings, a high level meeting was held at which MDOT, DEP, SPO and the Governor's Office reviewed project status and future plans. The need to undertake a thorough EIS was discussed, as was the need to bring the private owners of Sears Island (all but.the cargo pier site) into active coordination with the Tbwn and State. Coastal Program staff also plan to met separately with local,officials in order to help determine any additional local planning or studies needed to assess community impact of the project,'and to provide technical assistance where needed. The full text of the Circuit Court ruling is reproduced in the Appendix to this report. A more detailed report on the preparation and coordination of the EIS for the project will be submitted to OCRM shortly. -18- SEMON 2 - Monitoring & Enforcement Activities See Section 1, Tasks 1.A - l.C in addition to the following: o Old Orchard Beach Condominium Developers have proposed to build a 140 foot high condominium at Old Orchard Beach, the tallest building on the Maine coast. Old Orchard Beach was developed in the early part of this century and its beach is fronted by densely packed Victorian hotels. In 1980, the Town negotiated with the Shoreland Zoning Task Force to allow higher densities in their shoreland zone that would more appropriately fit their beachscape. The Task Force agreed to allow 43 units per acre with a 70 foot height restriction, buildings separated by at least 100 feet, and 65 percent of each site left undeveloped. In April, the Zoning Board of Appeals for Old Orchard Beach granted the developers of the Danton Towers Estate a variance to build the 140 foot tower. The developers were required by the town to preserve a famous structure on halt their property and claimed hardship to be allowed a higher structure. Following the variance, the Board of Environmental Protection and the Land Use Regulation Commission asked the Attorney General to initiate legal action against the town. The Attorney General noted that the reasons for issueing the variance are legally deficient and that the variance should not have been granted; however, the State's legal recourse under the Shoreland Zoning law is questionable. At most, the State might obtain a court order for the Town to obey its ordinance. Refusal would then require obtaining a contempt of court citation. on the other hand, if a civil suit filed on behalf of the Grand Beach Association to protest the variance was appealed, the State could join the plaintiffs. The Board of Environmental Protection is currently processing the Sand Dune Permit for this project (see page 10 ). Because more than 600 residents have signed a petition against the Danton development, a public hearing will be held in August before the Board makes its decision. za 0 Sand Dune Law Upheld The first case to challenge the constitutionality of the six-year old sand dunes law has been appealed to the Maine Supreme Court. In February, a Superior Court ordered a New Hampshire couple to remove a cottage they built on the foredune at Popham Beach. The couple were not told they needed a state permit when they obtained their plumbing and building permits from the Town Code Enforcement Officer in 1976. The State upon learning of the project, denied an after-the-fact permit. The Supreme Court heard the arguments in March, and in early September unanimously upheld the Board of Environmental Protection's denial of the.permit. The Court also returned the case to Superior Court, with instruction to look at whether the Sand Dune Law unconstitutionally takes property without compensating the owner. A similar case is now in Superior Court. The Rubins built an addition to their cottage which is located in the foredune area, also at Popham Beach. Again, an after-the-fact permit was denied. The State is asking that the Court uphold the denial and require the couple to remove the addition. -19- OOB tower may face" BEP denies sand dune variance The Board of Environmental Protection from storms and natural beach processes tough DE.P recently voted to deny Dorothy Rubin's and making the addition a flood hazard to request for a variance to the Coasta, Sand itself and neighboring property. Ken Fink Dune Rules. The Board thus denipd for a - NRCM director, University of Maine scru iny second time Rubin's after-the-fact re- professor, and beach geologist - testified quest for a permit to construct an addition in opposition at the hearing. "The record By SID LEAV= to ber summer home on the Hunnewell of two seawall failures within a period of York County Bureau Beach section of Popham Beach in Phipps- only ten years along Hunnewell Beach burg. makes clear the ultimate fate of seawalls OLD ORCHARD BEACH - The NRCM closely monitored the Robin there. It is only by virtue of the seawall tallest building on the Maine coast- application, the first variance request that the property still exists. When the line would be built under a propos- since the adoption of the variance pro- seawall fails, the shoreline will probably al that has received local approval vision to the Sand Dune rules in Oc- adjust to a position behind the proposed but is expected to get rougher tober, 1984. location of the addition. because the level scrutiny from the state. The chairman of the board of the The Rubin case has a long history. The of the sea has risen over the years, we Maine Department of Environmen- house addition was built during the must expect a constant retreat of the tal Protection said Tuesday that winter of 1.980-81 but an application for a shoreline with cycles of accretion and pushing a proposed Danton permit was not made until August 1983. erosion." Towers condominium to 16 rather That application was denied in November Board members were unswayed by argu- than eight stories seemed to be a 1983 because the addition is located on a ments by Rubin's attorney or the geolo- 11clear violation" of shoreland frontal dune. The Sand Dune rules pro- gist she hired. Board member Peter Wiley zo= laws. hib't both new buildings and additions on commented, "The project is against the uel Zaitlin, a Biddeford resi- a f1r11ntaI dune. After the adoption of the intent of the regulations right down the dent Whose board has had several major run-ins with Old Orchard variance provisions to the rules, Rubin line." Board chairman Sam Zaitlin urged Beach on other environmental mat- applied for a variance. the Board to take a conservative approach ters, said he "wouldn't be at all The Board's decision to deny the vari- because of the dynamic nature of the beach. surprised" to see the state attorney ance rested primarily on its determina- Despite the board's denial of the vari- general's office take legal action tion that the seawall presently protecting ance request the Rubin case is not over. against the project. the Rubin residence will fail within 100 Rubin is appealing the Board's decision to L6cal sentiment was clearly dif- years, leaving the property unprotected the Maine Supreme Court. ferent Monday night when the Zoning Board approved a variance for the Danton family's proposed 164-tinit luxury condominium to exceed the town's 70-foot shore- Danton originally proposed an B- land height limit by another 70 story condominium that wouldn't feet. have required a zoning variance Besides being the tallest build- but would have meant demolishing ing on the coast, perhaps anywhere the villa. The plan also would have T/7 in the state, the 140-foot structure needed parking space across the would be about three times larger street In a marshland that isn't in- height limit "Isn't really a var. than any of seven other high-rises cluded in the plan approved lance." now being developed under the Monday. That point was argued Monday town's three-year-old shoreland Ile 16-bedroom villa, known as night by Saco attorney Bruce M. zoning ordinance. the Snow Mansion because the Read, representing a beach prop- Danton -Towers would produce clam-chowder family once owned erty owners association that has an estimated $700,000 a year in tax It, was enough reason for a 4-1 ma- filed lawsuits against three other revenue, more than 10 percent of jority of the Zoning Board to find high rises at Grand Beach and is the town's annual budget, and that special circumstances justifying a expected to do the same against has made the project popular with hardship for Danton's variance. Danton Towers. most tcwnspeople now facing one The board majority also felt that "There are no unique circum- of the highest effective tax rates in Danton had been led into the stances that justify a variance of the state. higher proposal by the Planni this ma ng pitude," Read told the William M. Danton, manager of Board. which as)Droved the 140- board. Sure, maybe you could his family's 3.8-acre estate in the foot structure on a split vote after grant a smaller variance - but 70 posh Grand Beach area at the expressing sentiment for savmig feet?" north end of the town beach, said the villa. Board member Robert LoPresti, doubling the condominium's Zaitlin said he would like to who moved for approval, said the height would be the only way to review both board'decisions In villa was worth saving: "It's the keep the family villa from being detail, but on the face of it, he said, only Snow Mansion in the whole razed. a 70-foot variance for a 70-foot country." -20- SEICTION 3 Wetland/Estuary Report Three significant events occurred during the reporting period. The State and Town of Wells continued to acquire strategic wetland and upland areas in the, Wells National Estuarine Sanctuary, the State Legislature enacted freshwater wetland legislation and the State hosted the first annual wetland managers' conference in Portland, Maine. Management activities in the Wells National Estuarine Sanctuary are increasing with the-preparation of four educational brochures, the hiring of consultants to prepare interpretive, access, and facilities plans for the Sanctuary, the solicitation for a Sanctuary Manager, the preparation and distribution of a national brochure on estuarine sanctuaries, and receipt of a grant to construct trails in the Sanctuary. Sanctuary activities are reviewed in detail in the Sanctuary Advisory Bulletin No. 2, April, 1985. (see Appendix). The new,wetlands law (L.D. 838, AN ACT to Protect Freshwater Wet Lands, Public Law Chapter 485) establishes a program within the DEP to regulate the alteration of unforested freshwater wetlands which are ten or more acres in size. Five types of activities are exempted from regulation: agriculture, normal forestry management and harvesting; peat exploration and mining; operation of hydropower projects; and construction, operation, maintenance, and repair of interstate pipelines. The law provides that permits shall be granted for activities which do not unreasonably harm significant wetland values such as flood prevention and wildlife habitat. Permit granting authority may be delegated to municipalities. Alternative approaches to the evaluation of wetlands for regulatory and management purposes were examined at a national symposium in Portland, Maine, June 17-20. The symposium, sponsored by the Association of State Wetland Managers, featured field trips and 25 workshops as well as presentations by 70 speakers, many of whom were nationally-recognized experts. Several of the workshops focused on Maine wetlands and the State's regulatory system. Approximately 350 pecple attended from all over the country. 06e/ -21- SBMON 4 Fisheries Management Activities � Effects of the World Court Boundary Decision Prior to the decision by the World Court on the U.S./Canadian boundary in the Gulf of Maine (see Progress Report for July 1 - December 31, 1984, pages 31 and 37), the New England Governors and Eastern Canadian Premiers established a Bilateral Working Group on the Economic Development of the Fisheries. The Commissioner of marine Resources and the Director of SPO's Policy Division represented Maine on the Group. The second and third meetings of the Bilateral Working Group were held during this reporting period in Montreal, Canada, and New Seabury, Massachusetts. Meetings focused on identifying the issues arising out of the boundary decision and out of current trade tensions in the fisheries. The group's immediate concern was narrowed to issues concerning government's role in assisting the fisheries, the structure and functions of the New England fish marketing system, and its effects on both U.S.,and Canadian fishing interests. � Iobster Management The Legislature during this reporting period approved a grant program to create five lobster hatcheries along the coast. Passage of this law acknowledges the importance of the lobster fishery to the State and the commitment the State is prepared to make to improve this sector of the marine resource economy. � Quahog Management 'The pilot quahog study sponsored last year by the Machiasport Conservation Commission and funded under Maine's Coastal Program has paved the way for more extensive research. Questions that remained unanswered regarding spawning times and growth rate of quahogs prompted Dr. Gayle Kraus, Assistant Professor of marine ecology at the University of Maine at Machias, to propose an in-depth research study of the quahog. Professor Kraus' $17,000 proposal was accepted by Sea Grant for funding. To be studied are the effect of water temperature and depth, and the relationship of bottom conditions on growth. Further information on age, growth rates and spawning cycles will also be sought. The value of the Machias Bay quahog harvest from May 1983 to May 1984 has been estimated at $10,000 a week during the summer and half that amount during the winter, for a total annual dockside value of $350,000. Wholesale value after sorting and shipping approached $700,000 for the period. The new research should help in the management and conservation of this resource for a reliable harvest for the years to come. � Sea Grant Additional 1985-86 Sea Grant projects include assistance in development of a successful trading operation in connection with the Portland Fish Pier and Auctionlevaluation of alternatives for international management of Georges Bank fish stocks, publication in Territorial Sea of legal analyses of important marine management decisions, and support of the June, 1985 East Coast Fisheries Law Conference. -22- ~0 ~6qL~4qi NE~' fishermen ~qJ'~f~qA nd~qing -P~2qd~qrt~6qt~r6~8q(~8qN~8q8w~-~.~,~.~ ng ~q6~0q4~6q6-th~qi~qt ~q6 ~2q6r~' hurt by Georges ~q(~f.~m.nual ~e~qy~qfrag~o~'~c~qif quan~qt~qi~qt~qi and ~qi~qi~-~q4~q6~s~a~a~l~qf~qi~s~q4~qi~qh~u~e~ql~a~-~ 1983 1~979 ~- Bank decision nd~qI~n~qg~s~. n ~q0~1 ~i~f ~ ~@~, ~1~, ~:- ~-~@~,~; ~@~' t~,~'~q@- ~qA~!~-~,~@ C~an~a~qd~ql~qin Zonal. By Nancy Griffin New England fishermen could lose ~31~9.~4 ~@~r~q% of million a year a~s~& result or the World Court n_~1 'Quantity. decision that divided Georges Bank, ~AC~- Port Million lb~qi~. ~qM~~qi~l~l~l~qo~q@~@~q$ Million ~l~qb~a~.~:~' ~M~1~1~1~1~0~~8qC cording to a National ~N~iari~n~e Fisheries S~er~- Rockland 40.~9 ~9 1 4 8 A7~4~'~, ~v~ke (NMF~S) report. Portland 01.3 ~0 Stanley Wang. bead of th~e~'NM~FS 14.5-~7~. 2~.9~' It. ~1-4~.~2~ ~1~A ~q7`~@ ~r~qx~w~t~. no that estimated revenue losses I ~'~.~,A75.1 ~q0~9.0 7. ~r~T ~%~1~3.~1 ~J~i~l~;`~q@~! ~no~mic department that prepared th~e ~A~*~V~o~r~o~i~* ~7 1 ~1.~7 l~qi ~qi ~;~1 2~1p~p~1p~p~p~ ~th~et~e~s ff. .~'. ~f~~, , ~- ~- ~- ~~: 817- ~"~t~"~: ~i~" ~208 ~'~73 2 ruling me "minimum Now Bedford ~;~:~" ~ I ~' ~Id J~'- ~1~6~.~5 ~j.~, ~0~.~0 values" and~qOc~o~qo'u~rt be even higher than die Newport ~@~t 33 0 ~5 ~s~w~i~d~p~a t~ed New E~n~g~L~a~n~d~-~'wi ~- ~5 de average Of ~"~"o~, ~y 1~6 ~4 ~0~1 ~7~1~1C figures included ~b NMFS reflect ~P~0~1~1~11I~.J~u~d~It~h 53.2 ~L~b~e effect c~m ha~r~v~e~n~er~s~ only, not on pro. ~@4 canon or dealers. Tow. ~qJ~, .~4 PIC report states that Rockland, Maine~. -~T- ~7~-~7 would suffer the greatest loss in ~p~erce~n~t~a~p ",a ~-~-~.~w~v of ~e~x~-v~e~s~sel r~e~wnu~e: about 19% of site f~l~e~s~s~t~'~s &Must income. ~.~'rhat~' s ~a lot Of crop," declares Frank 7~q/~P~5 ~q&H~&~qM ~OW~1~1~c~r Of ~R~ackl~a~u~t~ti's largest fleet Of fishing vessels. ~'~7~1~ta~t~'~s ~n~owh~er~c-~a~qm enough. It's more like ~50~% or 60~%.~" N~MFS based list estimates on ~t~a~n~d~i~s~qw ~a~nd fish sales in N~ew ~P~o~n~,~-, 's seven m~a. ~qJ~Or ports during the five-year p~e~d~qW from ~I~qM ~t~h~i~r~m~i~g~i~s ~I~qm. Thou ports~ seem.~, ~f~o~r ~8~1~10ft Mass ~I~W~% of the ~r~q4on's fish landings U. S., Canada ~a~n~d revenues Harden h~i~qi in actual doll. will be New ~f~l~e~s~i~for~d~. with a ~pot~e~n~ti~s~s~i Ion of ~$~1~0~2 ~N~%~U~q-~. because ~50~% of ~th~e fleet fi~sb~ed ~q" disputed grounds before the court identify key declared them o~ff-li~t~ni~t~s~t. "If 50~% of t~h~e bum w~en~t~,t~hcr~e, ~qf~qt ~f~il~t~ur~e~s should be even higher.~, says ~J~i~m ~qX~ostak~e~s, bead of the N~ew El~edford ~Se~s food Producers' Association, an o~r~g~a~nI~z~&~- fishing issues ~110~13 of more t~h~a~n 70 individually owned fishing vessels. ~7~1~4 Other P~or~n~s in decreasing order of By JOHN ~F~E~R~LAND d~Y P~6q=~s and characteristics of potential revenue' loss, are Glou Staff Writer the place that each feels Boston P ~da~n~d ~qj~4qr ~, Newport and Point hurts trade. ~J~ud~i~qf~qt~"~! seven ports ~s~e~c~t~n~i~nt for ~qW~% of Government fishery leaders ~7~1he subsidy report is Intended the fish Previously landed by Americans from New England and ea~stem t~o explain the extent of each court. f~m~m t~h~e Z0~1~24 ~D~ow controlled by C~a~n~a~d~, Canada have Identified k -their v~4q2 Issues ~9 Public contribution to ~'~i~y~O~m c~a~n Play ~a~l~l kinds of games with that Deed to be reso~i if ~t~h~e d ~st~r~ies, and ~is expected t~o con. American ~a~nd Canadian fishing ~I~n~. tain recommendations about which ~t~b~a~l~t~. numbers~,~" says Cos~ak~.. ~"I~tu~t du~stries are to get along better In types of subsidies may be reduced t~b~q=~,~3 ~110 doubt them's been an Impact. the marketplace. to ~Improve~'the coexistence of the U~.S just hard to really tell yet because t~h~e product's gone down anyway. ~s~s~W t~h~e The extent of ~qg~ovemment~'~subs~i- Canadian and American Indus- northern edge of ~G~eor~s~o is closed for d~le~qi, potential improvements in tries. ~0qrwni~n~s un~d~l May." the market and the potential for Apollo~n~lo said the assessment of American access to Canadian ~mar~i~cetpl~ace Characteristics may G~lou~ce~s~s~t~er~'s dependence~ o~n th~e Cans. waters will each get further study Include such Information as how d~i~&~n~,~z~O~n~c is estimated at only 8% of ~i~ts ~r~- this spring, according to' the Boston auction influences re- fl~ec~t a ~a~r~m al revenue. But Angela S~a~nfi~l~ip~. ~"spokesmen from each side of the g~ion~a~l prices despite the fact auc- ~4~1~0~.- head tot the Gloucester ~F~ish~erm~e~n~-~s ~2q>border. tion information on quality may be ~W,~i~v~a~s~, Associa~tio says the fleet is ~"su~t~. In addition the Portland Fish unrelated to supplies elsewhere in ~f~a~i~n~g~" from Ion th~e grounds. Pier will get~'more attention ~b~e~- the region. ~"Especially the big boats." the explains. cause fishery leaders want to de~. Preliminary plans for the April -r~b~e~r~e~' bee~s~s a bi~g impact~; it's been te ~* th e impact on meeting Indicate an explanation of ~rmne ~4~en~t ~a~l~l = lung~. intemat~i.~6qff~l.~0qM~qo~st~2qZ. the Portland Fish Pier will be part Spencer A~pol~l onto, Maine's ~com o~ft~h da~. areal underestimate. ~6q1~2q7 ~1p~p~nk O'Hara agrees "Mesa fi~gu~ms am ~7m~iss~ioner of marine resources', D~6q! ~acLean, deputy minister Already there' no ~md~f~is~h left. it's down to 2% or 3~%. Our ~qXsaid last week's meeting of fishery of fisheries in Nova Scotia, said be ~'~bo~a~u are now fishing on the Grand l~i~s~t~a~l~ts Commissioners and ministers from ~is uncertain how Canadian fisher- for the ~f~in~s~t time In is years. the two countries was "useful and men regard the propect of using productive." the pier, but the potential for the 'The five-year paw they studied He said the Montreal meeting' be an efficient and closer started in 1979. On June 6, 1978, ~qth~qe Can~q& focus was "entirely consistent! ~P~2q@~8qRk~'e~qo ~6qgg area for Canadian fish dim said, 'Don't come across our ~ql~qb~qs~qo 0~q- with a proposal on access and mar- e. e facility worth explo~6q@~8q7~q*r~0qf~2qg~2q, ~q'~qa~qgd~qo~q.~q' ~q7~q7~qtat report only shows the rub we keting proposed In December by MacLean ~qTema~qins Cis u ~q. Ion in the disputed area," adds, O~q'H~qar~qs~q. ~qC~qrov. Joseph E. Brennan. -about an American proposal for "You'd have to count the fish ~q.we loss that ~qT~qhe meeting, sponsored by the access to Canadian waters. we harvested traditionally in, their wat~qs~8qm New England Governors' Confer- He sa~qld "the question of access not just in disputed ~qa~qr~qe~q&~q" ence, is part of a series of meetings is an extreme~2qL~qy difficult one" be. Wang says the ~qsu~qmmu~qtr~qy report to ~qi~qm~qa being held to organize ~qon~qr~q,-term cause each country uses different ~qt~qh~qa~qtt-~qasu~qmmaryofam~qo~qr~qedetail~qe~qt~qi~qmpor plan to see if the ~qf~ql~80q%i~6q:~q9~q1 Industry approaches to resource manage. that will be published later. That report will relationship between the two cou~qn- m~qant~q. lag fall, MacLean said list more specific data about New England's tries can be changed. American fishermen ~qmay ~q4ve~qrf~qish dependence on the Canadian zone. Canadian waters ~qIf allowed to fish Apol~qlo~qn~qlo said he hopes ~2qm~q-co~qm~q- the~qe. ~q. N~qN~qF~qS staffers are also hard at work on ~8qmend~qat~qio~qns may be read~80q&~qf~qor the But he acknowledged after the mother report, the flip side of this June ~qim~qeetin~4qk of New gland's 'Montreal meeting he Is interested economic impact estimate. ~qM~qw next one governors and the eastern C~qanad~ql~q. In anAmerican proposal for access will attempt to show ~qth~qe impact t~qh~qe bou~qn~q- ~qd~qer~qy decision h- ~qt-~q1 on ~q1~q1~q@ ~qV~qa~qn~qw~q"~q.. -Kee neex~q-t~2qhshery meeting will be only if It includes ways for the Ca. ~qf~qf nadian fishery to benefit. held in April. According to Apollo- Brennan's plan would offer U.S. ~qn~qi~qo-~qa~qnd D.A. MacLean, deputy c~qoo~76qgrat~qlon In the development of mi~qn~80qfer of fisheries in Nova No American markets ~qIn ex- Scotia, each country will bring to change for access to Canadian t~6q4e meeting a report on t~qhe~qir subs~qi~q. waters. -23- SECrION 5 Hazard Management Activities 0 Coastal Barriers Draft maps of areas under consideration for inclusion in the Coastal Barrier Resources System were received from the Department of the Interior, National Park Service, during the reporting period. Ownership information on the sites was obtained by the SPO through the regional planning commissions and councils of government, who also were asked to inform the affected towns of the proposals. State comments were compiled on each proposed addition to the'Coastal Barrier System. 0 Affect of the Bay of Fundy Tidal Power Project on Tides Sea Grant's 1985-1986 program includes implementation of a joint University of Maine/University of New Hampshire effort to study tidal effects of the Bay of Fundy project. The potential for a one foot increase in tides will be examined through development of a circulation and,tidal response numerical model of the Bay of Fundy/Gulf of Maine. -24- SEMON 6 Urban Waterfront & Commercial Harbor Projects 0 Iocal Waterfront Revitalization Projects (See Section 1, Task 2.) 0 Sears Island Development (See Section 1, Task 5.C) 0 Maine's Fish Pier Program Six of the seven fish pier development projects started in 1978 with State support were operating as of the end of the reporting period -- Portland, Kennebunk, Vinalhaven, Eastport, Saco and Stonington. The Rockland City Council on April 8, 1985 voted to proceed with engineering studies of the McLoon Wharf for use as a fish pier, a change of site which had been approved by the EDA in October. Near the end of May the Council voted to give the city manager the authority to negotiate the purchase of the McLoon Wharf. In Portland it was announced in April that Biotherm International was proceeding with a small pilot plant to test and demonstrate to City officials the new fish waste processing system it has proposed for the Portland Fish Pier. In May the Portland City Council approved a $540,000 money package for construction and equipment needed to open its highly acclaimed fish display auction on the Fish Pier (see clipping page 27 0 Maine's Ports & Marine Transportation Program Maine's Fish Pier Program has been instrumental in modernizing marine infrastructure, but it omitted many smaller projects. The Maine Department of Transportation proposed during the reporting period to supplement construction of the major public fish piers with rehabilitation and construction on some of the small and medium-size piers used for fishing and commercial marine activities, recognizing that increased costs have made it impossible for wharf users to pay the entire bill. A coast-wide pier needs inventory was undertaken by the DOT and Coastal Program to provide the basis for a program and budget to be submitted to the second regular session of the 112th Legislature, for funding by a bond referendum in November 1986. 0 Portland's Waterfront Portland's waterfront was the subject of a four-hour port program on July 16th, part of the Eastern Regional Conference of the Council of State Governments. The program highlighted Portland as one of the few examples -25- Eastport is. looking. to the sea - again By Bract Pokorny tion and declining fish stocks. the last factory harbor a full 40 feet of water for cargo ships Globe Staff closed two years ago. that tie up to Its wharf. That. officials say. al- EASTPORT. Maine As Its name might With its unemployment rate running at lows world-class freighters to load in Eastport suggest, the sea has always been Important to nearly double. the state average in recent years and enables the city to compete with major this isolated community in Down East Maine. and per capita income about 25 percent below Ports In Canada for a sham of the paper pulp In the 1800s, the island city was a bustling what most Mainers earn, the city of 2000 has trade to Europe and the Far Fail. Gulling stopover. a rival to Portland and Ports- looked desperately for a way to boost its for- It may seem a small thing to outsiders. but mouth. lures. the project shows how a small community.. Assailing faded. sardine canning boomed. The sea. officials say, once again may pro- with it little help from state and federal agen- By 1882. 18 sardine factories operated here, vide the answer. cies Is working to pull Itself up by the boo - and the population reached 5000. But after Last month. Eastport passed a major mile straps. fighting its long history of economic de- World War It. the domestic sardine Industry stone on its comeback trail with completion Of. featism. declined rapidly. battered by foreign competi- a $3.5 million pier extension that gives the EASTPORT. Page 47 Expanded Eastport Breakwater attracts ships by Marie Jones Eastport's newly expanded breakwater has been used. in recent weeks. by three ships. The 465-foot Greek freighter Rania was the first freighter to use the renovat- ed breakwater. The ship arrived February 24 and took on 3,500 tons of Georgia- Pacific ktaft paper destined for Grange- mouth, Scotland. Ile 545-foot, Norwegian freighter Dryso. the latest ship to use the break- water. arrived Wednesday, March 27 and departed the following day. The five- story ship took on 3049.2 short tons of kdraft paper and 211.1 metric tons of beech, maple, birch, oak and ash destin- ed for ports in England. Germany and the Netherlands. The LASH ship Bilderdyk moored off Eastport on April 4 and look on 14 barges of kdraft Pulp. The 857-foot ship which was built in Belgium in 1972, car- The Stonington Fish Pier in Stonington, ME is open for business. There is a ries a crew of 24 Spanish and Dutch nat- ionals. The ship had sailed from New flat, $10 a foot yearly fee (prorated) for boats, and a $100 yearly truck charge Orleans, La. to Eastport and its next for pier use. Plans are in- progress to get an ice facility on the pier. The pier is scheduled poll was Sheerness, United pictured above during race festivities on June 29. Kingdom. Aortland Fish Exchange 4w I AAJ .No -sell overs., game.day payment. to fishermen seen as major advantages of Proposed. auction`_.* ---PORTLAND, ME - Ile Portland ind@=. Change within 24 hours. A late pay- 'h?rt, the idea is a protection against Fish Pier has faced many critical bers would be appointed merit from the buyer would ban-thi unioni zation. moments during its eight-year pJan- by the oty from nominations by the- buyer from the exchange for a period- BFt industry representatives on the . and construction phase, but industry. The city has not officially to be set by the governorK - seminar panel said unl diU and ;TrKaps the most important period is asked for nominations, but people In a letter accompanying his gro- preparation of fish shcoldi another ow. have begun submitting names to posal, Fulham said the increase costs management responsibility of the ex- The time has come to implement- Valleau. n -ded to participate in the exchange - change, paid for by the fees levied on ce the display auction that is supposed The governors would hire'a full- are the 'two principal disadvantages* auction users. to make the multi-million dollar pier time exchange manager. Valleau said of the auction. But he added that the' 'Do you think processors would ac- the seafood marketing center of the exchange would probably need at costs are "minor burdens 'when cept the harvesters@ culls and northern New England. least another full-time employee and balanced against the same day settleL. "' weightsr asked fisherman Robert- City officials, using a Fier Tra-- two part-time employees. ment for fishermen and selective buy- Tetrault. Tetrault said there should be- c t contractors oing i tio sal develope( by omas The governors would solely ins and known product cost to independen d ' it. A= expect to have a pier manage the exchange. administer byers.' Processor John Norton of Cozy management system by summer so trading rules and work with their ulham also said that non-local Harbor Seafood said an exchange- fish can be traded later this year. A own budr, making the exchange buyers and non-local producers may controlled movement of fish would r. dis la t, f?r lroundfish has separate rom the rest of the pier. be attracted by the exchange. mean a "single-source authority* at - Pe t _e 'Although this may be viewed by the the pi nev r Ure ulosend in United States, The idea, Fulham said, is to make er, ensurin against cheating or but I iL Fulham's recort received general the exchange public, democratic and local industry initially as a d theft, azu provi , stand-rdo-tion. endorsement from fishermen and pro- flexible to market conditions. lion, it could prove to be'a =Ie of culls and weights. cessors attending an-auction seminar answer to the current problems of at While telling the grovp that the at the Maine Fishermen's Forum in Mernber!h' and times not enough bu disial March. yers or not ay auction approach is right, Participant.s in the seminar em- responsibilities enough suppliers an the attendant Gene Connors of the New England B@yers must pay a fee to g-t a severe supply demand fluctuations,' Fisheries Development Foundation, Phasized. however, that more thought . -seat on.theexchange. ValleauWd Fulham wrote. "The prop6ed rules urged the importance of security. must be given to who will handle fish the fee will be set by the governors, and regulations are designed to pr, Connors said it must be clear the steal- a, the pier, including the unloading of but would probably be a few thou- vide for the participation of non-local i ish will not be tolerated. -. boats, culling and weighing, ard sand dollars." participants to broaden market activi- nclham's recommendations must. security provisions. There was also Buyers must also post a cash ty especially from foreign sources.' follow channels at City Hall before Concern about the extent of Portland deposit or file a bond or other securi- being implemented. Valleau said city City Council involvinent at 'he pier in order to cover @ums which are Display auction logistics aired administrators want to have the City and he= for ,hoe -uncil giv- Yoe vessels. The seminar at the Maine forum Council consider the recommendations he ing t loan @et it going, Vessels will be charged fees for was the first o@ ? ,@,,ortunity for public by late spring so the exchange gover- and discussion about having Cana- using the p ipment and auction discussion of u ham's pier operation* nors can be in place by mid-summer, dians use hie 'u. services b. 9u !rcentage of . proposal. There were many questions The exchange's opening date is uncer- F 1, 0 a P! Thomas _Vaeau, Pordanclls volume f sales. A similar foknula - about the display auction, such as tain, but city officials expect the director of transportation and water- will be used to calculate a vessel's how much fish could be handled and federally funded $1.2 million building front facilities, said two bf features cost of registering sales at the ex- who would be the auctioneer. In housing the auction to be completed of the auction - called the ortland change and using various exchange o in August. V7ni,ng remarks, panel moderator It appears that two issues will Fish Exchange - will be same day pay- services. fle u said this was the time for be ment to fishermen and no 'sellovers. Vessels would be responsible for discussion and questions. at the forefront of the council's con- In other words, all sales will be final, unloading, sortin grading and The major issue for most fishermen sideration of Fulham's report: Will the with disputes about quality, quantity, weighinS their fist, Auction person- at the seminar was the unloacliz of council agree to give the governors price or condition subject to a bind- nel will be responsible for moving. fish and preparing the product orthe the autonomy Fulham recommends? ing ruling by the fish exchange fish onto the auction floor, but auction floor. Fulham wants fisher- And, will ,he council agree to loan manager. vessels wid be responsible for auc- men to take the responsibility because the fish exchange start-up money un- Many of Rilham's recommenda- tioning their fish. he believes that if another party is til the exchange is earning enough to tions establish an outline for the auc- Over-the-road dealers must also responsible, that party would have the be self-sustaining7 lion with such details as exact fees pay fees based on volume of sales. potential to control the exchange - in John Feriand and rules to be set by a board of governors. Here is how Fulham envi- - Fish sales sions the auction: The exchange would allow the display auction or a combination of Management display auction and bulk sales, in The exchange would be led by a which species to be sold in bulk re- seve i-member board of governors. main aboard a vessel. The membership would include three, Two auctions may be held - one in people familiar with the operation the morning and another late in the and ownership of fishing vessels; afternoon or in the early evening. three people familiar with the opera- Fishermen would get payment the ,ion of fish processing and marketing; day of the auction by receiving a and one person from the public at bonded check from the fish exchange. large who is knowledgeable about the Buyers would have to pay the ex. in the northeast of a city that has given priority to marine industries. About forty participants learned how waterfront zoning has been adopted to encourage marine develbpment, and how millions of taxpayers dollars have been invested in the fish pier and the Bath Iron Works shipyard. (For further information on Portland's waterfront zoning see the feature article reproduced in the Appendix to this report, page 53 ). The pace of change on the Portland waterfront is captured by the news article reproduced on page 29 . In a related story it was announced that Ocean Canyon Corp. was planning a $2 million expansion to its Central Wharf facility in Portland to use low value red hake and whiting to produce surimi (products imitating lobster tails, scallops, and crab), offering fishermen another alternative in seaford processing. Portland's City Council during this reporting period adopted design guidelines proposed by the Planning Board for future development on the waterfront. With financial assistance from Maine's Coastal Program, the guidelines were prepared to (1) preserve and enhance public access to the water, (2) provide for compatibility of new construction with existing buildings, (3) ensure high preservation standards for the rehabilitation of historic buildings, and (4) provide for streetscape amenities that reinforce the traditional strength and character of Portland's waterfront. The guidelines are voluntary for private projects but mandatory for those which include public financing. They have already proven their value in -the Planning Board's site plan review process in connection with a Central Whraf project involving 88 condominium units. 0 Harbor Management Problems and Needs In January the Coastal Program staff conducted a statewide review of harbor problems and needs, including a survey of selected state and local officials. The topic was explored further during a meeting of project managers for local waterfront grants on February 7th (see page 15 ), in a Portland Harbor Management Workshop held for this purpose by the State Planning Office on February 21st (see page 30 ), and in a Harbormasters' Workshop organized by the Cooperative Extension Service on February 23rd in West Bath. The priority issues which emerged from these discussions were: 0 responsibilities, authority, status, visibility, education and training of harbormasters; and the need for a formal statewide harbormasters' aisociation and a comprehensive overhaul of State law pertaining to harbormasters and harbor management; 0 interagency communication and coordination, local/State/federal; 0 a need for increased public awareness of the economic importance of ports and harbors; 0 a need for financing for harbor improvements; and 0 a need for local technical assistance with harbor management problems and issues. -28- ~0 Waterfronts bustfi~4qn~ with changes ~.~2q9 D~6qev~6qe~6q&p~2qn~qtent Port ~and likely to retai~qr~qt site to being studied housing and a n~dz~s~& ~u~s~e~2qm~e~d that ~m~x~q@~qo~f~nv~o~l~v~e a proposal for pace in 1985 the o~f Maim Aquarium~. By JOHN ~F~E~RIL~A~ND 7. Portland ~P~l~a~h Pier ~6q0 ~n~" ~ ~p~i ~c~qi~4qVu~"d~o~o on ~h~n~4q=~"~- to ~ of .~2~3 ~1~q1~3~1~0q2~~qa ~0 11 ~n cooler-auction bu~ild~i~n privately properties ~t~o on ~b~r~a~"~a~f~t~"~a" buo ~S 1.~9 million services open .it"== ~O~=~d~a~u~" to ~m~a~l~~c~s the I~. March~. ~b~u~q%~8qA~w~i~u ~Po~t~t~l~a1~w And South ~P~o~r~t~l~"~qA ~W~6~q4~qO~U~qK~4 ~qM ~s~omb~L~e, a Monopoly board~. L Por~t~a~o~z~oW ones~ ~G~8q7~2qV to Finch G~n to ~t~qr~q;~4qt~e ~P~o~d~o~ou~k ~Itc ~u~s~e =~0qW ~b ~Itchell ~m~W ~6q?~r~6q=~d~q!~q!~qm ~s~r~e~q- house ~a~rt C~o~rrun~e~:~q@~8qt~4qZ~8q=~q:~q"~8q=~t~s~t~o :I,. Th~e ~a~ltu~a~f~io~n ~In~A~l~c~a~t~" that ~t~m~q~ in we. build an 80~-unit ~I ~qL ~l~ert~ro~nt development will continue Its me- ~a~nd health cJub. Finch ~h~a~s root d~i~e~c~lo~s~ed m~-~mt ~m ~I~n IOU. ~I~n the ~I~&~A three ~y~e~a~qm man cc" but the =will obvi~ou involve ~qG~) ~W~Y ,1,- $~8~0 million worth ~(~d Public and private several million Investment ~q" nearly $~3~0~0~.~0~0~0 In plan~, Porteous is moving Its warehouse opo~qm j~a~u~d~l~a~s have focused ~*"~-- on the ~a~r~s~o. t~ions to a now building In the ~S~p~u~i~dw~a~s~or ~2qM no a ~so in flux~, projects ~sc~h~a~tlu~t~ed Estates Industrial Pak. So. Portland to ~b~e~g~i~qr ~6qwy~a~s~ur and the ~r~e~op~w~L~t~q" ~Ip~qW Christine Dunn, director of acquisition for ~m~e on ~t~h~e map ~u~d~s the Finch Group. wild the compa~n L Tb~o Quit Block begin renovations this spring ~f~or~y *I,= Donald T~. ~0q=~O~t~qS~iar~t In the spring of IDOL ear ~h~a~s ~l~e do t~q:~q:~6qM~qW so million. I~n~al ~s~6qj ~9~6 Hobson's W~har~t situated at ~G~en~s~t~a~l Properties ~I~n~e- of Portland bou~gh~r~l A= the unused pier Met summer. General Prop~. &A series Intends to develop It ~f~o~r ~m~ar~in~e~-~o~r~l~. option ~h~a~s ~O~U~L ~N ~i~t~b~w anted companies, sold John L Stiles. a Cohen ~4q=~b~qot~i~2qrb~qT~i~l ~. ~2q=~. Oboist partner In General Properties~. Marino. will ~c~om~me~6q@~nt~.~6q@~8qZ ~P~R~O~G General Properties expects to lease space, buyer ~h~a~s made an offer on the ~bull~d~qg~8qV~a~q"~w. to its first tenant won. Stiles ~"~L~L The c~o~m. Here's lineup for cha ~S~. St~a~n~s. ~t~h~e ~1~6~4~1~.~4~d~a~w~ ~2q=~Y also intends to make about ~$~200.000 =~6q=~i~a~n~l~d~n~q"~L~h~e ~p~-~p~-~q~- of plot Improvements. Including d~r~e~d~g~- Proportion an Portland Harbor ~f~t~c~i~n~g H~ob~ec~e~i~s What Ing, In order to make a commercial marine 1~0: Holy~o~q" Wharf. ~L ~C4~W~S~M~W~C~qW Street I ~L proposed Gulf of for fishing ~w~e~d~s~a~t~s~. Stiles ~e~a~d ~L Commercial Street~. 2. proposed cargo plot to 10 boats in the 7~& to ~0=~_~8q=~'~2qC I S~t~r~e~&~L Tonight, t~bA Port'-ad C~I ~&~h~i~s to berth at Hob~so~n~-~a. West side of Maine ~9~4~0 Pier. ~13~. Portland Bridge. I - ~.~ 4. Portland Plot. 14~'Channel Crossing Will discuss removal of ~t~h~e IL Holl~yc~il~i~t~o Wharf ~S. Milk Street Armory. 1~5. Former Pine S~qt~qat~q* ~qB pan at the ~pr~o~j~e~c~i~i~. This is another property owned by ~L~*~v~l~n~e~. ~6. Cumberland Wharf. I& Former General ~qE L Wed side of Maim State nor He In In the process of selling it to an u~nd~is~. 7. Portland Fish Plot. ~o~f~t~ed, Also scheduled f~o~r work this year closed buyer. ~I.~A~v~i~n~o said ~n~o major ~ch~a~t~4~a~s L Porteous ~w~ar~el~i~qm~i~s~o~, is ~t~h~e would occur Immediately at the property ~qw start ~o~f ~c~4~a~x~i~m~et~i~o~r~t of a cause the m~e~j~o~r tenant. Maine~, Fisheries~, the ~S~3~.~6 ~m~d~u~o~n Cason B~qq ~q6~8qX~qp~o~qw~q-=~.~q"~I Situated in South Portland on view Stroll, waterfront Is ~d~eve~qlo ~cI~2qZ~2q=~o~g~f~tt ~a~s~s~i~f proc~e~s~s~ot~. ~h~a~s another a. $I million Channel Crossing opened last A future Issue is p~ori~t~in~g ~2 on ~I~0q:~td spring. The owner, Jamison Tavern A~s~soc~i~- zoning two ~C~68qV~48q9 ~4. Portland Plot t I~,~,~P~r~q!~q1~q;~q;~i~od Gulf of Molise A~q~u~arl~o~o~n ~*t~o~* to pl~ar~on~Ing a ~$~60~0~.~0~0~0 expansion to "at ~I~d~4qTo~f the d~ow~alk and ~I~l~6qVg =~n~s~sn~o~i d~w~e ~w ~a~l~l~p~s. The city pL~&~qm ~$210.0~0~0 worth of street~. ~o~n the Gulf of Maine ~A4u~&~e~u~m ~m~@or~e than double~ On ~i~s~b~e of Its marine t~o 1~20 t ~6~1 a ~th~r~e~e-yea~r ~Vo'~qpt~io~n on three acres for the I of ~qm~w~m~ai~i ~s~qu~ar~lu~r~a~'~a proposed ~5~9 million facility. But IL ~P~h~o~e~St~at~e~l~b~i~l'~i ~8qC~qY~2q=~4q=~P~l sow ~. the ~i~s~q"~r~iu~m Is also reviewing proposals H~q~s Edge Tru~d ~4 ~b~a~&~s~s~&~C~M~I~B~O~U~N r~efu~qs~qe'd L Mil~i~t Street Armory from developers who would like the u~a~r~l~. bought the 7.~6 acres lad summer for ~U~32~.~- ~d~6qv~8qr~8q=t Issues ~F~t~en~o~v~a~u~c~i~n of the property Iota ~t~h~e ~S~T Usti. um on other properties. Waterfront ~q@~2qA A. ON at a foreclosure -uct~l- When t~h~e ~co~r~s~- apparent in South ~qP~qa Ban Old Port Regency Hotel Is, expected to ~so~c~i~mte~s proposed a ~$4~0.5 ~m~il~l~ic~i~a ~m~i~z~e~q"~s~i~s tended to build Tonight, the City :tan next m~o~o~t~h. said ~r~j~u ~C~I-b~a~c~t plan for the I~n~t~ema~t~i~on, Farm T~or~m~in~a~l~l. ~2q=~qX~2q=~q.~2qr~0qX~4q=~bul: the firm Is &,king the p~W~qa~qn~qi~qn p~ok~o~a~m~a~s~t for the ~ow~n~o~n~s~@ Armory Associ. and ~lU~c~h~n~qmd Corp. offered a mixed-use *waiting a development study In determine a former ~d~d~8qv ate ~- The howl may open In about Is ~m~qw~d~i~s~6 plan of an undisclosed cost ~f~o~r the wee side = plain~, said Dan ~q4~, a partner ~1~1 arid ~V~'~qr~52qr ~qi~qt he Lid. Pan of the project Includes co~n~s~t~n~i~o~. of the Maine State Pier. Tb~o Rkh~r~oc~i~nd~qi~t~i~m, ~1~1 Edge. The ~co~m~p~an nearly ~1~1~0~- ~2q=~0qrd ..~,~i~t., ~U~o~n of a 13~0-~lot pa~rld~n~i~t am on the site now would need to be coordinated with t~h~e t~Y~8 ~jh~ed d~*~m~o,~I~jh~t~n~S an a t~h~a~qtultd~in~g~s on the development while occupied by ~t~h~e Jordan's ~M~o~s~U were~6q" ~o~s~q@ plan to build a ~Ca~o~o~o Bay ferry ~qW~mL~n~&L ~. ~. ~8qC tr~uc~t~i~o~n w~qt~qi~l~i~qg~qir~o~b~a~l~it~i~r ~De~v~e~l~o~p~f~f~W~a~t pro ran ~S~u~l~s~e~t. ~t~o the spring o~f I ~9~qK Egan t~h~e CAROM Bay t~0q= IL ~P~r~op~o~s~e~d~e~sur~p~op~l~e~r oft ~g~q1~qg~i~rty. Now c~o~s~t~at L Cu~m~b~e~e~t~q" Wharf The Maine Department of ~T~r~i~t~ins~p~a~r~t~h~t~lC~O~V. 1~4. ~F~r~w ~C~,~'~q" ~U~4 Greater The S~tr~u~ir~s of Me Owner Bob Levine h~a~s closed his Cumber~- ~6q=~.~%~8q@~8qrd ~q- ~- Portland ~D~sv~e~lop~m~e~o~i~t~E~4q=~o~a shipyard ~q;~qY~p~r~o~v~a~l to create, land Cold ~S~t~or~a~v~e business~. ~t~A~v~t~n~*~, who~, a& ~u~d ~t~t Diamond ~q1~q2~q1 v~e~r~tl~e~ed his property for ~$~2.~1 ~-~1~1~1~"~m ~q" ~Po~r~t~qW~A~q: ~-~2qE~8qZ~'~8qS~$~1~6q!~6qZ~q3~1~q-~6qYt~6qC ~V~6q=~q. . to owned by Spring P~ot~at I~s~lan~l~ed, Dlctar Assoc ~w~Am~m~o~r In the lived street ~J~o~ur~r~i~s~t~, is enter. ~8q=~don~al Ferry Terminal~. The committee Associates. which Is offering the area ~f~o~r unit housing develop We~" from d~ev~o~ic~i~p~ar~s~i. He expects review progress an the ~P~M~qJ~4~4 this lam". The owners have not ~a~qm~ou~nc~ed s~p~-~u~- ~7~1~0 city wants to ~M~O~D~U~L ~i~c plans for the property. ~a=~q1~1~1 a mix at as a r~o~adt of deve ~I~L ~b b~o~x been discussed~. Albert G~lI~c~l~am~a~n. Dieter A~ssoc~l~at~qe~qs~q; or ~M~4q= new r~' be do it, ~'~I~. Plan b~e~l~Ap his~. ~& ~sp~qA~s~s~o~u~t~a for ~th~e ~ow~a~s~t~z, ~o~qwl~i~ll not be coral red by tw~e~e~n Portland ~a~nd ~6qZSo~u~4q2 Portland at a cook reached ~f~o~r comment. of between S~6~2 million and $~5~3 million. d~s~@ 1. other w~a~t~e~r~fr~o~ut ~m~a~r~t~e~l~l~, ~e~r~q"f~al policy Another ~l~e~t~q" j~r on which alternative plan in choose,, Issues are ~h~i~ci~n~g the Portland City Council~. ~3~0~0 Acres on ~L~4~q0~qg I plans a public hearing in late ~op~r~L~o~g~. To~r~d~g~qK ~t~h~e council will discuss new w~e~.~, t~orn~ati~o~n~al Co. The t~o~r~fro~o~t ~&~cc~&~" criteria Intended to keep from time to t~i~m~q&~q& 14~. Channel C~r~o~U~l~qf~qt R~est~s~ur~a~i~d and M~ort~h~e walkways and views open to the public ~u ~t~h~e the wan ~s~t~r~q" ~qJ~qo~qu PORT & HARBOR MANAGD1ENT PRIORITIES IDENTIFIED AT THE SPO WORKSHOP 2/21/85 The discussion centered almost entirely around planning,-management and promotional issues. No major engineering, construction or other physical problems shared in common by many communities emerged, probably because of the diversity between harbors, not only physically but also in usage patterns and growth rates. Needs identified at the workshop were as follows: Technical assistance and information needs - Need for model harbor ordinances and harbor plans - Need for model zoriing ordinances - Assistance regarding harbor management and harbor financing (e.g. model financing strategy, use of mooring fees, etc. to support the harbor, assistance in making harbors self-sustaining. Technical workshops, e.g. on moorings, dredging, etc. - Handbook of State/federal regulations and the regulatory process - Assistance with the harbor management and planning process (e.g. how to involve harbormasters, harbor committee, selectmen and gain Community support) On-going educational program in harbor management for harbormasters, harbor committees, port authorities, selectmen, etc. Technical information, e.g. regarding soil erosion, storm drainage and channel sedimentation. Need for coastwide projects - Harbor needs inventory Research & analysis of potential harbor investment opportunities (i.e, possible projects with significant multiplier effects in terms of local/State jobs and income) - Harborfront land strategy - A clear and consistent submerged lands policy Evaluation of harbors by a high level Task Force - Streamlining of State/federal regulations and the regulatory process A State office to oversee harbors to asgure that they meet minimum standards, (e.g. relative to training of harbormasters, funding level, provision of basic equipment, adequacy of harbor regulations, etc.)@ Promotional and Education Programs - Publicity and promotion regarding the importance of harbors Long-term educational programs regarding marine resources, coastal issues, harbor management and public policy - Major conference on coastal issues - An on-going coordinated State strategy for port and harbor development -30- 0 Dredge Management State Planning Office staff prepared a report on dredge management in Maine as a result of a request in April from the Coastal Zone Environmental Impact Subcafflittee of the Sea Grant Policy Advisory Committee. It was found that: (1). The basic recommendations from the most recent studies of dredge management in Maine, published in 1982, have not been implemented. Maine does not*have an overall dredging plan or a process for ongoing assessment of the State's maintenance and improvement dredging needs. There is an apparent need for follow-up on the 1982 studies. (2) Priority needs as currently perceived by the DEP are: (a) further study of sediment contaminants and sediment classification, (b) study of alternative disposal methods for different sediment classifications, and (c) locating of additional ocean disposal sites. (3) Priority needs as currently perceived by the DOT are: (a) a resurvey of disposal sites and locating new sites, (b) review of the inventory of authorized dredge projects and (c) finding a way to streamline the permit process or guide applicants through it more expeditiously. (4) State agencies agree the present case-by-case handling of dredging projects works well, that there is no call for a State dredging plan, or setting of priorities between different harbors. Recommended follow-up was for an informal meeting of key people concerned with dredging (representing DEP, DOT, DMR, the Army Corps, EPA, harbormasters, fishermen, and other commercial/industrial interests) to be convened by the Coastal and Sea Grant programs for further discussion of needs and available resources. 0 Action Plan for Revitalizirmg New England's.Ports In April the New England Governors' Conference submitted a report on its New England Port Revitalization Project to each of the member governors. (Initiation of the project was described in Maine's previous Coastal Program progress report.) The NEGC report contains extensive summary data regarding New England port activity. An analysis of exports during the eleven month period ending November 30, 1984 indicated that New England ports attracted only 16% of the goods being exported from New England, despite proximity to Europe, the Near East, Africa and South America. Commodities and manufactured goods from Maine's 133 shippers went in 770 separate shipments to 21 ports across the country for export oversees. New England ports attracted 19% of the shipments originating in Maine, of which Portland accounted for just over 1 percent. The report concludes that New England port operators must aggressively demonstrate to shippers that cost advantages and economies of scale will result by using local load-ports. Ports can regain and possibly increase business by providing cost advantages and comprehensive marketing. The ongoing purpose of the NBGC project is to assist in that effort. _31- SECTION 7 Coastal Access Activities Superior Court Justice William S. Broderick on July 31 1985 dismissed portions of a suit against the State of Maine and the Thwn of Wells by fifty-four beachside property.owners on grounds of sovereign immunity. The property owners had brought suit to reaffirm property rights to the low water mark at Moody Beach. Their deeds, dating back to 1888, indicate ownership to the low water line. Three counts of the five count suit related to this issue. It was unclear to what extent Judge Broderick's decision would support public access for all beach uses, expanding traditional rights for fishing, fowling and navigation to include recreational rights in general. The landowners' suit also challenged the legality of Thwn promotion of public access by using public funds to acquire rights of way, and contended that the plaintiffs are entitled to monetary damages because they have been deprived of property. These issues are still pending before the court. Harbor access is a prime subject of design guidelines adopted-by Portland's City Council. See "Portland's Waterfront", page 28 of this report. See also page 13. SECTION 8 Permit Procedure Simplification The proposal for a "Permit by Standard" (general permit) for the Coastal Wetlands Law received further review during the period but was not finalized. Legal review by the Attorney General's Office led to re-drafting of several sections. Final public review of the general permit is expected this fall or winter. SEMON 9 - Activities Related to Protecting & Restoring Cultural Coastal Resources 0 Preserving Town Character On June 8, 1985 the Director of the State Planning Office addressed 200 participants in a conference in Kennebunkport, Maine on "Preserving Town Character". The conference looked at growth trends, tradition and change, growth management and techniques for protecting and preserving town character. Participants were challenged by the SPO director to articulate their own special sense of place, something not measurable by economists but none-the-less a vital economic resource. He urged use of available tools -- land use plans, land use ordinances, historic preservation ordinances -- but warned that legal tools review development projects one at a time, and that better understanding should be sought of the problem of the cumulative impact of development. He also stressed the importance of enlisting the private sector, citing joint public-private efforts behind creation of the Wells Estuarine Sanctuary (where local citizens raised over $1 million) as a prime example. -32- ~0 ~1p~~~~~1192;52;36;148q1~0~ seven miles of that Moody Beach s~qu~lt~o~qs ~qfall~qo~qu~~qf~l~, owned. ~r~. ~T~he legal argumen the Colonial Ordinan could spread nat~qion~4qw~6q4de ~1~1~-~1~. J~1~, :-"I ~qi~d~ holdover from the Maine was part of M By DONALD M. I~OL~M~S had a right t~o ~e~n~0q* the ~se~l~i~t~h~o~r~% and Massachusetts w~qe since colonial times. even when British Empire. WELLS (AP) - There's, n~o the seashore happens to be ~I~f~tivate The Moody Beach boardwalk at Moody Beach - no ~p~r~o claim the Colonial roller coasters. hot dog stands or ~I~qg~ne~qi~qne~y~. Attorney ~Oenef~a~l ~3~6~6~6~* granted private lando amusement piers. -There's' only IL Tlerney ~agre~ed,th~at Moody,', the beachfront, reser sand and surf. Beach, a mile-long ~str~6q%~a~b~o~art 26 public only the right Moody Beach Is also Bob Kirk's miles north of the New ~amp~sh~ilr~e is ~t~, "fishing, fowl~in~qk or Its backyard. If It were up to him, he'd state line, attracts its share of In most states, ~q9 ~ tsummer crowds~. ~' ~i~l ~1~.~~ ~f access to the beach is ~g~L~, But. he added, "P~eop~l~e~'~st~ay In ~f Maine and move to Maine because because the "~Inter~qi~qld ho~8q: I n land that Is covered s~a~a, but~'expo~sed when the of the o~q:~qr~8qx~o slot our state. This ~l~i Wells I an an what M I about~.~" Is not considered p I= ~a ~q:h A after a career execu AT&T, mostly in Tierney said he's concerned that ~- erty. At Moody Be~qac New Jersey. a decision In favor of the land~ow~i~l- All that he and his bea~ch~f~k~o~nt era would become a precedent-~se~t- owners argue that t neighbors went Is peace and quiet. Ling barrier to public access In, Ordinance grants them Kirk said. A group of more than 50 ~shor~efr~i~ont areas throughout the., the entire beach, ell th se~a~s~I~de ~, ~a It country low-wat~ermark. The defendants In t~o court ~n ~P~y ~0 rs ~"~a ~The issue to particularly serious which Include the ~qat hop, 'he ~b ~I~M I Maine. The state's craggy coast ~V~. ~s~c~l~. ~qW ~off ~1~1 in ~1. -the ~bIn We~l~ls~,~Board of Selec ~a~b~i~. t~b~a~r~o~d~a~y ~2qL~1c~. line halt become one of the ~f~lc~d~q;~qg~q@ ~t Lain that England ~qInten ~d~men~~tl`~q@ I M east's premier tourist ~attr~actl but created the ,,he ~l~o~w~n IN~.~, th ~ng~, ~~al Resources Council of Maine but the glaciers that carved ou~t prom and the Conservation ~L~aw Founda- numerous caves and h~a~rb~ar~s do., ote the devel tion In Massachusetts are taking only ~3~5 ~m~i~l~les of sandy beach~.~.~O~n~ly~, If a Court suit brought by C~o~qf~qt~i~l~e ~o~d~a~n~s~qm ~r~u~l~t~ec~ee~d~e~s wharves. .Me bile his ~n~r ~~irles complaint earl ~9~1 h ~a ~. time I ~a~u~6qu~q@ ~S~q.W~E~qU~S t~h~e right of these ~i~n~in~-w~or~sh~ip~p~i~qw~o to ~0~q40~Y Moody All have -become ~pa In ~t~h~e Back page this section Beach In Wells will be curbed. ~a~l~qo~4qMn~s Assistant At eral Paul Stern, Makin ~u~l~l. Ail maintain the pu~$~b~l~lc has ~rn the, ~l~i~f~o~s~ty~l~a and ~ql~qi~q'~qd he Plate of M '~"~q!~.~,~t~i~len~t~s argue have changed. They ~qa~qs ~l~et. have started ~qarri husl~o~od. end that th~qe to ~J Dion Is worried about the motel and cam owns. "If the beach ~qI town Is gone." he ~qga~qt The suit Is expected ~f~or argument In York C ~f~l~or Court later t~h~qis ~qs~qo ~q!~1~-1~@ of the late that ~V~oca~t~ionl~a~nd~" regard I Public access to be~0q"~0q%~,~.h a~0qr~qi~4qa~0qrmed~.~.~. ~f~t~c the ~b~o~achtro~s~a~l property o~u~r~d~er~s~' ~q"~i~n ~o~f private and quiet ~It~i~ed the suit in Match ~B~r~adr~ick ~v~W~*~vd th~e It~i~d~s~'~s gat" ~" "I made t~h~e decision to w~i~n ~*~6q=~m~l~p ~1~1=~1~1= ~"~I~l~K~q" pr~i~i~i~a~L~e rights to Moody B~qw~A by ~su~a~s~s~~d~e- 19~84. after the ~U~d~e~a~t ~at Wells posted trust" ~o~f sh~a~r~e~l~a~n~d as strong enough to immunity because I wanted to ~s~o~n ~L~f~t fully claiming that ~t~h~e ~ot~s~u~s ~w~" ~p~r~o~, adds an the beach ~a~nd ~s~o~u~ghl~i to a= protect public ~ac~c~a~s~i~d ~f~o~r all uses. ~c~a~i~d~s ~" Tierney said. "Without ft. we would WELLS - Superior Court Justice ~W11~- by~6qt doctrine of ~s~a~i~d~er~s~i~g~n Immunity. ~1~1~q0~1~0qt of my to t~h~e ~b~a~d~s~ich. Mod ~b~o~a~d~c~l~i~tr~o~u~t owners need A special ~b~a~q;~q; ~qW a broader ~d~.~s~c~il~p~f~i~m of pr~i~i~i~a~f~t ~~~~ ~. ~~o~d~i~r~ick ~m Wednesday d~i~an~d~o~s~ed residents ~b~a~d wanted a ruling ~a~n ~b~e~wh~r~r~o~m owners Wood they waiver train the ~s~l~a~t~i~s ~L~*~8qV~t~u~r~e to h~e~" and public rights from the ~00~41~1~1. but MY Moody Beach property owners~' suit what pan of the beach was private ~a~p~i~t owned ~t~h~e beach - right down t~o the ~l~i~t~o~d~r~i~c~k consider the ~a ~o~f private responsibility is protecting 3.800 ~in~f~l~e~s of against the -we, thus Protecting Public whom public land and access base& ~o~c~oan~ - because t~h~e~ir d~o~ed~s dating back rights ads~. public &ocean without Of ~a~o~v~- Maine's ~co~a~d~i~m~e. At ]"at now we don't access t~ Maine'@ scant supply ~0~1 easily W~h~o~o B~r~adr~ick dismissed that section to ~I~S~U waste no m~e~nt~l~a~d~d of publicly ~a~d~m~is~n Immunity (actor. haw to ~a~di~'~m ~tr~i~s~op~e~s~sin~e sips ~a~i~m~& beeches. of the suit. b~eac~t~i~fr~on~t owners lost ~U~s~e owned ~s~h~a~d~m~i~s~a~i~l~. ~B~r~od~ric~l~i~. p~i~n~a~ddin~g in ~I~AwY~0~n in t~h~e Attorney general~'s office our be&=- ~rodri~k~'~s decision protects public use ~a~l~s~,~" part of their fight w~i~t~h~a~d~t On ~a~q" York County ~S~yp~o~r~l~" Court Lip ~A~d~i~h~o~d. tilde~. debated whether to u~s~e ~so~v~er~a~l~l~i~n ~Im~mur~i~l- ~r~o~a~xt~e~r said th~e d~e~d~j~a~n is oat a ~c~l~o~dl~ir t~y in this landmark decision. Without sav. victory for the state. or Maine's 36 miles ~at sandy beaches - 75 ~o~f t~h~e the p~u~b~ik~-~s *reign Immunity, B~ro~dr~i~ck would ~b~e~" hod -no ,~o~v~em~i~gn ~I~n~u~oun~i~ty Lane aim ~~~c~n~ of which am privately owned. ~c~l~i~s ~I~. Sidney In ih~i~s c~a~s~s. t~h~e Issue Is ~a dad Wh~let~at~at~o and tourism officials ~a~p~- ~M~q; Theater. who represented the right to u~" Moody Beach. am w~ho owns to rule ~n~e t~h~e cont~m~v~er~s~ial and untested I ~cu~d~*~t ~t~o~q"~" the o~w~d~ur~s~h~i~p ~~ud~d h~e Landmark ~d~ec~tsi~qm. the lawyer ~b~4~ach~f~i~e~n~t ~o~un~d~an~d~, ~'Because t~h~e ~S~qW~d Is Moody Beach." be wrote In his "wen- ~4 tons of ~w~h~o~- public access begins and p~r~l~@ ~8q=~1~q@e~m~- CA Portland lawyer said. no. ~.~~i~z~i~l~l ~b~O~A~c~t~i~l~l~!~@~t resident~, ~a~d~d~l~id he ~b~W~L~., t~b~id sovereign ~h~a~r~o~m~i~l~y~. they ~d~o~4~si~o~n. to past decisions in New ~6qV~, set. ownership of ~s~h~or~el~and ends. ~s~i~s~s~id we have a Catch 22 and It deprives would appeal B~r~o~d~~o~Ck a naiad to the Asia ~a~m not settled their day in court" land. courts h~e~" ~Su~d~i~m~at~a~d~ul public ~&~m~s~a~s Mot state did not pixy Its sovereign ~l~m- ~S~e~e BEACH ~p~w~w~W~s Gross ~m~p~o~t~i~n, all add ~S~k~qM than ~Y~qW ~t~e~0qr~v~a~d~i~n ~I~m~0qZd ~B~e~qw~h too b~e~i~t~qi~qch~a~d~d~s r, It Ad Ju ~6 ~w~qm~&~4~q:~0q% ~8qZ~q: ~P ~0 ~@~w~s~r or radial all ~1 auk Logo ~s~o~a~d~q" ~b~f~t~* shelf these people of & chance to get the tourism Industry, any other deci. decision. (public ~s~o~co~o~s vs. private rights) sion In this case would have been "if the decision had Sons the question resolved." ~e~x~tre~n~t~el d~a~ir~f~i~n~en~t~al for the other w~a~y~, I ~s~u~s~p~e~u~t till$ would Had Lim sovereign Immunity ~ar~. state." Lars, said. "There's no have had a domino effect o~n ~a~ll question that gum~en~t failed. Attorney General th~e people come hero for coastal communities." he said. ~i~sn~a~d~i~s Tierney was read IV ~t~@ ~m~e~t~. beach@@ and lobster.. To date. ~I~l~i~d~, town has spent situ) legal help from Maine a ~t~o~u. In t~h~e decision, ~Br~odr~ick also m~or~d~; ~th~a~s~i ~0~3~0~,0~0~0 ~I~t~s legal room in r~ism Industry. the state's largest ruled that the town was not liable the Moody Beach courtroom battle. private employer. ~, for spending taxpayers' money to The state has had two assistant at. Kathryn ~:We~a~m, owner of the post lifeguards on the beach and to t~orney ~qg ~anera~l~s working an the Cliff House and Motel in O~gunqu~it acquire rights of way to Moody l~andm~a Case. an Beach. B~e~achfront owners argued Two other Moody Beach issues ~i~t chairm ~a~( the Maine V~o~c~a- ~a~m ~t~ion Travel ~2qT~ommis~sion. ~ld her that taxpayers' money was spent ding before the court. Bro~- ~s~e ~Il~l~o~l~i~a~l~ly to support trespassing on ~c~tr~ic~6qri~qn ~I~.ted to decide later this commission was preparing to their private property. ~qK~q:ar whether Wells violated submit a brief to the court support~. ~ch~f~ron~t owners' constitutional Ing public access. Wells Town Manager Fred Bres. and civil rights when they tried to "From this point of view of the lin said he was ecstatic with the acquire rights of way to the beach. 0 Zoning & DeveloPwnt of Great 'Diamond Island The Portland City Counc il in June adopted Planning Board' recommendations for zoning 190 acres of the long-abandoned Fort McKinley on Great Diamond Island in Casco Bay. The zoning will allow renovation of barracks and other existing fort buildings into' 134 condominium units and help preserve historic values. The Fort is a certified rehabilitation on the National Register of Historic Places, tax advantages of which to the developer will assure renovations in keeping with its historic character. 0 Preserving the Character of the Waterfront Adoption of waterfront development guidelines-by Portland's City Council will help assure preservation of historic values. Suggestions from Portland Landmarks, a citizen group, to strengthen the guidelines were incorporated in the draft submitted by the Planning Board for Council approval in January. (See "Portland's Waterfront," page 28 of this report.) SECTION 10 - Coastal Energy Impact Program Report The status of projects under Maine's Coastal Energy Impact Program (CEIP) was fully reported in CEIP performance reports for the periods January 1 to March 31 and April 1 to June 30, 1985. Most projects are now either complete or nearing completion. Funds for Bangor's emergency boat launch were formally rescinded due to inability to obtain requisite property rights and permits. SECTION ll - New Memoranda of UnderstandLn (None in this reporting period.) -34- SEMON 12 Coordination & Administration of Federal Review Process 0 Federal Consistency Handbook Copies of the handbook were distributed and used to assist private and public agencies understand procedures for consistency review. 0 Major Consistency Review Activities Scarborough River Dredging: Review with local officials, state agencies, and the Army Corps alternatives for spoils disposal that best meet economic and environmental needs. Status: Discussions still ongoing. Belfast Beach.: Review of Army Corps proposal to construct a sand beach at the Belfast City Park with stone groins at both ends. Status: The Maine DEP, in its review for Water Quality Certification and consistency with the Wetlands Ixaw determined the project was not consistent. DOD/State Project Review Coordination: The Maine State Planning office negotiated a Memorandum of Understanding with the Department of Defense regarding review of DOD projects for consistency with State and local policies. Status: MOU signed. Acadia National Park: Several Park activities were reviewed for consistency with State and local laws. Status: Activities were determined not to require a federal consistency determination. NME: The consistency log for the period is included in the Appendix to this report. -35- SEMON 13 Public Participation Activities 0 Coastweek `85 The State Planning Office is co-sponsoring COASTWEEK 185, together with Sea Grant and the Natural Resources Council of Maine, to draw attention to the unique cultural and natural heritage of the Maine coast. In May over thirty-four activities involving over twenty groups were solicited for, Coastweek. On August 1, 1985 Governor Joseph E. Brennan issued a proclamation, proclaiming the week of October 6 to 12 as COASTWEEK throughout the State of Maine and urging all citizens to take cognizance of this event and to participate in its observance. Highlights arranged for Coastweek include television appearances, other speaking engagements, a television program on island management and protection issues, a beach clean-up event titled "A Plague of Plastics", and a flight over the coast. For publicity, SPO and Sea Grant designed and printed a brochure describing all events, with three thousand copies to be distributed. Curriculum suggestions to encourage school participation in Coastweek were mailed to sixth grade principals. The package contained a four-page fun marine quiz, activity suggestions, resource guides for audio-visual and special programs, Plague of Plastics information and the coastal management poster from the Coastal States Organization. o Kennebec River Council By-laws and incorporation of the Kennebec River Council were voted on April 27, 1985. The purpose of the Council is to promote the highest and best use of the Kennebec River through the reclamation, protection and enhancement of its natural, historical and recreational amenities through the cooperation and participation of the communities, citizens and interested parties in the Kennebec River watershed. An initial Council activity was the conducting of riverside workshops during the Kennebec Whatever Race Week on.history and archeology of the Kennebec, sport and recreational fishing, boating, water quality, Swan Island, and sea run fisheries of the lower Kennebec. 0 Public Information Bulletin (See Section 1, Task 4.A. -36- ,S-tate Of WHEREAS, the State of Maine has a varied coastline of rocky shores, sandy beaches, productive estuaries and salt marshes, urban ports and small harbors, tidal flats and thousands of islands; and WHEREAS, the coast has provided us with a rich scenic, cultural, and historical heritage; and WHEREAS, the natural resources of the coastal zone are among our most important economic resources; and WHEREAS, the marine environment is one of the most valuable resources supporting an active fishing industry; and WHEREAS, coastal landforms, especially barrier beaches, provide significant protection from coastal storms, flooding, and erosion; and WHEREAS, we are strongly committed to the wise management of the coastline to ensure for all the residents that the environmental and economic value of the coastal zone will be sustained; and WHEREAS, the coastline is also receiving nationwide recognition during the week of October 6 - 12, 1985 as a valuable but fragile resource; NOW, THEREFORE, I, JOSEPH E. BRENNAN, Governor of the State of Maine, do hereby proclaim the week of October 6-12, 1985 as COAST WEEK throughout the State of Maine and urge all citizens to take cognizance of this event and to participate fittingly in its observance. In testimony whereof, I have caused the Great Seal of the State to be hereunto affixed GIVEN under my hand at Augusta this first day of August in the Year of our Lord One Thousand Nine Hundred and Eighty-Five. EP E. BRENNAN overnor _7. E E. I ;@@ ov r JGepmo C@j Secretary of State -37- SEMON 14 New Publications Report Date Title Copies Pages Enforcement of Local Land Use Law Violations Using District Court Rule 80K January Mahoosuc Mountains 25 January Black Tern Habitat 10 January Seven Unsual Plants of Maine 25 February Ground Water Report 50 26 February Waterfalls 10 83 February Handbook for municipal Boards of Appeals 250 48 March No. 5 Bog and Jack Pine Stand is 41 March Whitewater Rapids 20 163 March Old-Growth Forest Stands in Maine 300 22 March Federal Consistency Handbook 20 23 April Minimum Shoreland Zoning Ordinance 200 15 April Poverty in Maine Volume 1 3000 -32 May Coastal Priorities Statement 30 36 May Handbook for Local Planning Boards -40 163 June Advisory Bulletin No. 3 1200 12 SECTION 15 LCP's (Not applicable to Maine) -38- SECTION 16 Changesto Coastal Zone Boundaries & Management Authority 0 Routine Program Implementation The majority of items in Maine's 1984 Routine Program Implementation submission were resolved by the end of the reporting period. Still outstanding was OCRM approval of (1) the nonsubstantive changes in the Marine Resources Law (Title 12, Sections 6171-6192); (2) the changes in the Protection and Improvement of Waters Act; and (3) the addition of the Submerged and Intertidal Lands Law. Formal notification of coastal communities and interested state and federal agencies of several Coastal Program core law changes was being held up pending final OCRM action on these last items in order to avoid the necessity of two notices. Approved items on which notice was delayed pertain to the Coastal Wetlands Law and regulations and the sand dune rules; the Hazardous Waste, Septage, & Solid Waste Management Act; solid waste management rules; ha'zardous .waste management rules; and the Hazardous Matter Control Law. SECTION 17- Report on Clianges'in the State's Management of Coastal Resources and New Coastal Initiatives 0 Coastal Priorities Statement (See Section 1, Task 3.B of this report.) 0 ARGO Maine Associated Research on the Gulf of Maine (ARGO Maine) is a cooperative effort among Bigelow Laboratory, the Department of Marine Resources and the University of Maine to coordinate research in the Gulf of Maine. An advisory group comprised of representatives from these organizations and from the Maine Coastal Program, Department of Conservation and others is responsible for directing the association. At the end of the reporting period ARGO Maine was planning a three-day workshop in August to stimulate research interest in the Gulf, to review recent Work, to identify research needed for policy decisions related to mans' increasing impact on the Gulf, and to provide a framework within which research can be designed. 0 Purchase of Great Duck Island The Department of Inland Fisheries & Wildlife assured the protection of Great Duck Island with its purchase in April of a 10 percent undivided interest in the island, in a cooperative venture with The Nature Conservancy. Protection of Great Duck Island has been IF&Wls top acquisition priority. A management lease on the department's interest will be given back to The Nature Conservancy, and IF&W will assist in the important decisions concerning the island's future. -39- 0 Coordination of a Consistent State Position in Federal Hydropower Licensing Proceedings On June 27, 1985 Governor Joseph E. Brennan issued an Executive Order providing for the coordination of a consistent State position in federal hydropower licensing proceedings. The order (No. 17 FY 84/85) was issued on the recommendation of the Land & Water Resources Council in recognition of federal directives regarding hydropower applications requiring consultation with a number of State agencies with management responsibilities for natural resources, historic preservation, public safety and energy policy. (A copy of the Executive order is reproduced in the Appendix to this report.) 0 Submerged Lands Policy Manual Comments from State agencies on the draft Policy Manual were incorporated in a new draft during the reporting period. Procedures required under the Administrative Procedures Act for its adoption were initiated with its submittal to-the Secretary of State's Office. o - Legislative Changes Administration of the Shoreland Zoning Law and the Alteration of Rivers & Streams Law was transferred by the first regular session of the 112th Legislature to the Department of Environmental Protection from the State Planning office and the Department of Inland Fisheries & Wildlife, respectively. These changes will be submitted under routine program implementation procedures as Coastal Program core law changes. other significant legislative changes include the following: Waterfront Zoning. Under L.D. 985, An ACT Concerning Commercial Fishing and Maritime Activity Zones (Public Law Ch. 236), the Legislature authorized municipalities to create a commercial fishing and maritime activity zone within their shoreland zoning ordinances. In so doing, municipalities are directed to consider the number of commercial fishermen using the shorefront, availability of shorefront for commercial fishing, demands for shorefront property for other purposes, and access to the shore and availability of space appropriate for commercial fishing and maritime activities. Wetlands. (See Section 3 of this Progress Report.) Critical Areas. L.D. 997, Critical Areas Program Appropriations (Public Law Ch. 466) provides $40,000 for 1986-87 to conduct statewide surveys to identify significant geological, botanical and zoological areas worthy of preservation and inclusion on the register of critical areas as mandated by the critical areas law. Maine Rivers Grants Program. L.D. 125, An ACT to Establish a Maine Rivers Grants Program (Public Law Ch. 105), creates a fund for making grants to local governmental or other agencies concerned with the protection of the Statelsoutstanding rivers. The fund is to be capitalized by donations and proceeds from the sale of a Maine rivers decal or emblem. -40- Ground Water. L.D. 1655 addresses the problem of ground water pollution by leaking underground oil storage tanks. The new law establishes a. certification process for tank installers; establishes a ground water clean-up fund; requires registration of all existing and new tanks; requires tank installations over sand and gravel aquifers and near public and private water supplies to have secondary containment or a ground water monitoring system; and requires proper abandonment of tanks out of service for 12 months or more. L.D. 961, An ACT to Implement the Recommendations of the Maine Land & Water Resources Council Ground Water Policy Committee (Public Law Ch. 479), extends authority to protect public water supplies by including ground water aquifer recharge areas under the jurisdiction of municipal land use regulatory powers. It also proposes a regulatory approach to the widespread ground water contamination problems associated with ro'ad-salt and sand/salt storage piles, and provides for State financial assistance to municipalities for pollution abatement construction programs. Classification of Waters. L.D. 1503, An ACT to Amend the Classification System for Maine Waters and Change the Classification of Certain Waters, was held over to the next session of the Legislature by the Committee on Energy & Natural Resources. The bill was introduced late in the session and the committee considered its importance to warrant in-depth review without the time constraints of this session. -41- SECTION 18 Major Coastal issues 0 Boundary of Azadia National Park Most everyone wants to see a permanent boundary established for Acadia National Park, a clear limit to the park's growth which provides for a rational management unit. Prior to World War II the Park Service recognized the shortcomings of Acadia's jigsaw puzzle shape and became interested in consolidating and acquiring key natural'areas not yet donated. Failure to reach agreement, however, is allowing development of areas to the detriment of the park. Disagreements have centered around the desire of towns to minimize the loss of their tax base and of developable land, the use of eminent domain for park acquisitions, the dedication of conservation easements by property owners on lands near the park, and payment for the services provided by the town to over four million park visitors annually. The issue of a permanent park boundary is addressed in legislation introduced by Senator George Mitchell, with the support of the rest of Maine's delegation. 0 The Future' of Maine's Coastal Islands Increasing competition for coastal property, particularly in southern Maine, and the threat to traditional values caused by pressure for the development of islands such as Great Diamond Island in Casco Bay, were described in the previous progress report. The resolution of the zoning issue on Great Diamond is described in Section 9 of this report. Taking a broader look at island issues, for most of the twentieth century, the history of Maine's islands has been one of population decline. Technological improvements have shifted the demand away from use of island resources or, in the case of fisheries, have allowed fishermen to live farther from the fishing grounds. Individuals and families have moved to the mainland in search of greater social and educational opportunities. Frenchboro's current struggle to maintain itself as a community and as a way of life is illustrative. In 1910, some 197 people lived on the island, farming, raising sheep, selling pulpwood, tending herring weirs, and fishing for cod, haddock and lobster. Now there are only 41 adult year-round residents. The school, which once held up to 60 children this year had only four. A growing market for summer island homes has resulted in conversions from year-round to seasonal, a shortage of year-round homes, and their pricing out of the reach of year-round residents. Frenchboro has responded with an attempt to provide new housing and otherwise make the community more attractive to new families, with the assistance of a Community Development Block Grant from the State, but the future still remains uncertain. Maine's island heritage is one of our great national treasures. It is on the islands that sane of the deepest Yankee maritime traditions persist. The spectacular beauty of the islands goes hand in hand with diverse resources including nationally significant flora and fauna. But pressure for growth and development in Casco Bay and southern Maine are the leading edge of change. Sixty percent of the U.S. population lives within a day's drive of the Maine -42- coast, according to the Director of the Island Institute. The population of coastal counties is growing rapidly, and Acadia National Park with more than 4 million visitors was the second most heavily used national park in 1984. Not including Mt. Desert Island and Acadia National Park, 95 percent of - Maine's coastal island acreage is privately owned. Development is controlled by town zoning of varying quality and strength. The issue is one of balancing decisions regarding management of island resources and island access between the different constituencies with island interests. At stake is the preservation of irreplaceable natural resources, the continued economic viability of vulnerable year-round island communities, and the enjoyment of the islands by increasing numbers of visitors and seasonal residents. 0 The Wise Use of Port & Harbor Resources Port and harbor development issues were highlighted at a meeting of the Maine Econcmic Society in Portland on.March 20, 1985. The focus of discussion was the conflict between water dependent uses and landside development of water enhanced uses. P.D. Merrill cited increasing harbor traffic, Portland's neglect of its Port Authority, and the need for zoning to assure space for water-related @ctivities. David Bateman spoke of decreasing Boston port activities and the increase in development of water enhanced uses, saying that these pressures were moving up the coast to Portland and beyond. He cautioned that high waterfront taxes were forcing low-income uses off the waterfront, that regulating growth and development may preclude needed new tax base, and that zoning must be flexible. John Ferland spoke of the need for better understanding of both sides and of the potential for waterfront development to create jobs. Simply reporting on waterfront happenings was a full-time job, he said. The issues discussed at the meeting were exemplified by two headlines in May: "Portland Waterfront, Fishermen Fight Back," in the Maine Times and.."Can fishing boats and condos co-exist? Central Wharf developers think so," in Commercial Fisheries News (see clipping reproductions next page). See also the feature article in Advisory Bulletin No. 3 in the appendix to this report. 0 Coastal Priorities A Coastal Priorities Statement and ranking of twenty coastal issues by the Coastal Advisory Committee is described in Part I, Task 3.B of this report. -43- 0 MEnMeNew's&Issues took over Long Wharf, he said. Berthing is also PORTLAND WATERFRONT being lost on the Maine State Pier, which is turning over one side of the pier to Casco Bay lAnes for ferry Fishermen fight back service to the Portland harbor islands. Another I berthing pier, Central Wharf, is being converted to Fishermen are taking a major step to try to secure their place amid booming real estate development condominiums. on the Portland waterfront. They are proposing to Hassen said the fishermen's only hope to counter purchase and rehabilitate Hobion's Wharf to a a the development pressure is for them to have a provide berthing for fishing vessels and to construct wharf they own and Hobson's is one of two that the harbor commission thought would be a feasible a, building for fish processors and other marine- said the new berthing would "create a related businesses. Last week they received au- project. He demand for processors. It's important for economic thorization from the Finance Authority of Maine (FAME) to finance the project with a $1.9million. stability. If the [fishermen] don't have a place to go, [processors] won't be here." industrial revenue bond. At a public hearing, proponents of the project Bradley said that the project wouldn't be creating said that unless new berthing facilities are pro- excess berthing capacity, as argued by United Fish. vided, fishermen will be pushed off the waterfront "We would be relocating existing businesses," he @y professionals'otfices, shops, and condominiums.' said, pointing out that. the entire first floor of the They said the Hobson's Wharf project symbolizes marine building is already spoken for by companies 14 the determination by fishermen to keep the area a currently located elsewhere on the waterfront. "It "working waterfront." will maintain the statui quo," he said. The only opponent to the Hobson's Wharf Portland development'director Clark Neily en- proposal was United Fish Company on Union thusiastically supported the project, as did Dick Wharf. United Fish president James McGough said Groton of Commercial Properties Inc., which owns Hobson's Wharf. He believes the project is so in a letter to FAME that a tax-exempt, below- im market rate bond "would give an unfair advantage portant that he has extended the fishermen's purchase option on the wharf twice. to the developer over the other fish processors and berthing facilities in Portland." Fisherman Keith Lane, a principal in the wharf, But Ed Bradley, attorney for the Hobson's Wharf said "the issue is now survival. We are frightened by group, said that without low-cost financing, the unused wharf adjacent to the Naval Reserve development in the harbor. We need security and project would die because the fishermen can't Station Pier. It is in the so-called W2 zone, which is are willing to put up the money ourselves," be said. afford conventional mortgage rates. It would have a. prinicipally dedicated to marine use. The proposal "We need the benefit of low-cost money. The ripple effect, he said, predicting that without the is to remove the old pier, build two finger piers 260 project will never develop without it. What we are ,proposed facility, "fish processors won't be able to feet long and 80 feet apart and dredge the area along proposing is essentially a public work." continue their work" because they too need to be on the entire length of the wharf. A 30,000-foot, In a related development, the Portland planning the waterfront. two-story metal building would be constructed on board has rejected a project on the international n terry terminal at the South Portland end of the The FAME board voted eight to zero to allow the the land end of the wharf for fishermen to work o waterfront toward South Portland. It would have bonds to be sold. Normally, the municipality their nets and gear. The second floor would be used created a project similar to that of Boston's Faneuil involved would handle the issue but because the as storage space or "break rooms," places where Hall, bringing more mixed development to the ar a. fishermen are also asking FAME to guarantee the fishermen could relax between ships and workers e financing, FAME -will- actually issue the bonds. could take coffee breaks. Bradley said "there is no The requested state guarantee will be taken up at upscale space for young professionals" in the plans FAME's August 22 meetir .1g, Jiqy tl ..40 th , thi@ lerj4pr, for e. building.., for the Hobson's Wharf project, wants g'giiarAntee ."Steve Has@eh, 6 ifiember of the Greater Council of on the financing because the equity investment the -Governments and a member of the 1983 Harbor fishermen can afford is lowerthan usual. Since the Commission which did a study on berthing, told the wharf would be devoted exclusively to commercial FAME board that the waterfront doesn't have fish operitions, Key Bank reasons that it would be enough berthing space. It started to disappear when hard to resell in the event the project fails. Bath Iron Works moved to the eastern end near Presently, Hobson's Wharf is a dilapidated, Munjoy Hill and DiMillo's Floating Restaurant Ail I= 20 COMMER6A'L FISHERIES NEWS MAY 1985 o =ago Portland divided t ing boat- Ihe'at into two zones. One Can fishi s and.conclos co-existT.' @- zone protects marine operations from encroachment %non-marine.- _ -_ Central- Miarf developers- think SO' development. e other zone - which inclu&s Central Wharf - allows a variety of businesses. According to PORTLAND, ME - Residential can- seeking other bases of operation - Company president John Bennett said - the zoning laws, housing in the zone is' dominiums are being proposed for because of thewharf.s disrepair- when the company opened, it realized allowed in new buildings constructed' Central Wharf, one of this city's -brokenf,*11i*:%,,?,a inhepiersur- that Central Wharf would be a tem- -,after April 25, 1983, "provided they '. - busiest berthing areas for fishing. face an h f:nt buildings.; =alocation because of the - -- - - .. do not di lace existing fish boat ber,- boats. ted buildings. - - -.thing whisS could not reasonably. - .- The impact an fishermen is uncer- What do the neighbors thinkI One of Central arf*s neighbors-' locate elsewhere in Portland Harbon' tain because city zoning laws prevent Some tenants of Central and is Widgery Wharf, home for about 35 Housing is prohibited in the marmie' -developers f. orn displdcing commer- owners of neighboring properties -sup- vessels, mostly lobsterboats. Patricia, zone. cial'vessels with housing projects@ port the project but are not sure how MacVane, one of -Wid 6' owners, The Central Wharf concTominiums About 2.5 groundfishing and lobster- well housing and fishing boats will said the Central Wh.,fea dominiums. would be Porfland's first housing pro- boats berth at Central Wharf. get I would not hurt the fishin tions ject on a pier. It would join several MZOL 90 ra 'other housing proj-cts in the central Liberty Group of Portland bought ring property owners said at Widgery. In fact. the .70- . the wharf in March from Jane Chw. the project is a sign of the times - the miniums may raise the'value of waterfront arza. The company plans 85 condo- fishlindustry is not growing *. _.. Widgery, she said. , * - -7Liberty Group wa ts Chee to help miniums, 170 parking spaces and a enou for most people to justify But MacVane predicted that the with the developmen because of her marina. keeping their. real estate in. a marine cost of Central Wharf's development status in the fishing industry and her If all approvals are received, use. would increase berthing chargei to knowled of the waterfront. Indeed; demolition of existing buildings and Austin Harris, president of the Har- the point where the fishing vessels she has itn one of the waterfront's the constructi0nof new structures ris Co.. Maine's largest wholesale would be forced off Central Wharf most respected property owners. may begin this fall so the residences marine distributor, said Chee 'did afl anyway. She operates Global Seafoods. a can be offered for sale next spring. she could to keep it as a fishing ac- Chee said if berthing costs increase seafood brokerage. She is on the Ln David Cope, a partner in Liberty tivity. But it just wasn't in the. as part of the new development, they Portland Community Chamber of Group, said project details - such as cards.' nonetheless will remain within the . Commerce's Port Development Com- design,'cost of the living units and One boat'owner, who rcqtj@sted market rates a! the rest of the harbor. mittee. She is a member of the board the number of marina slips - will anonymity, said he would probably of directors of the Gulf of Maine . _ - evolve over the next several months. move anyway because construction Condos need-planning board Aquarium and recently was elected to He and Chee declined to discuss the activity would rerriove his shoreside approval the Cape Elizabeth Town Council. overall financial scope of the project. storage space. He also doubted that The project needs a variety of She was married to Choungtai . Chee mid the project is intended to housing and the vessels would co- federal, state and local regulatory a 'Charles"Chee, ho died two yeais improve the dilapidated condition of exist because of noise, odors and the provals. pago. Her husband was the son of a Central Wharf, but not overwhelm , odd hours associated with the fishing At the meeting of the Portland Korean fisheries minister and neighboring properties or hurt com- - industry. Harbor Commissioners, one of descended from 11 generations of mercial activity. He said moving would be difficult Widgery's owners complained about a fishermen. . - , _4 Chee, who will remain with Liberty because few good berthing spaces ex- portion of the project that*would ex- The Chess came to the Portlan Group as a project manager, said she ist elsewhere on the waterfront. tend the pier 150' into the harbor to area in the 1970s and immediately foresees no problems joining residen- It really puts us in a bind,' he accommodate berths for commercial became prominent in the local fishing U and commercial fishing uses on said. d I isure boats. The proposal - community. Twice, Choungtai Chee ar" the property. She said the industry's But Brent 'Hubba' Bradford, owrer wouldeciramp turning space for boats goposed major fishing projects for sights, sounds, and smells define the of the 74'Mary Ann Bradford 11, ex- berthed at Widgery, said lobsterman entral Wharf. waterfront's character and provide an Eeccted to stay, based on his past Bill Floyd. Cope said the develop-' John Ferland attraction for residents. Housing iness relationship with-Chee. ment was designed according to became a reasonable project for Cen- 'She's been so honest with us.' he -reasonable navigation standards," tral Wharf because the property needs said. I'm willing to go along.' but Harbor Commissioner Ernie a complete renovation that would be - Bradford said housing and vessels Goodwin said he will be looking for feasible with the return gained from a can co-exist as long as the project more space than what "reasonable' housi takes into account vessel storage standards require. - !Nef.7n.t a sizable fishing-only space and the rights of vessels on the The strongest overseer of the pro- demand (for tenants) - especially with pier. ject will be the Portland Planning the fish pier coming on fine - to Another tenant, Port Quality Board. The city zoning laws for Cen- amortize a toW rehabilitation," Chee Shellfish, Inc., a processor employing tral Wharf make housing a condi- said. 15 full-time workers and 15 part-time tional use requiring Planning Board She said many tenants have been workers, is seeking a new location. approval. SBCTION 19 Equal Opportunity Report Three of the nine SPO professional staff positions funded by Coastal or CEIP funds are held by females; these are three of six positions fully funded with such funds. The two clerical positions are held by women. -46- SECTION 20 state Planning office organizational Chart SPO Diri;ct-or Clerk Steno III Director, Management Di7vi7sion + Clerk Typist III Policy DeveropF.-e-n-FT@@15MIs=-1 Land & Water Resource Counci + Business Manager I Acc't. Clk. 11 Cl. Typist III r Director, Director, Community Policv Division + lAssistance Division +7 State Economist P am Director Systems Analyst CDBG Program Planner II Planner 11 Planner II Planner II Res. Assoc. I Policy Dev. Spec. + Economist Field Exam. III - Senior Planner * @ @enior Planner L Cl. Typist III - Senior Planner + __ 4 __ Planner Planner II Senior Planner Planner II Senior Planner Senior Planner + Planner II Senior Planner + L Plan. super. Cl. Steno III Data Res. Asst. Cl. Steno 11 -Res. Assoc. I Senior Planner Cl. Steno III Planner II L ci. Typ. III Planner 11* Coastal Program Staff + Other SPO Staff working on the Coastal Program David Keeley, Program Manager Karen Massey Linda Harvell John DelVecchio Richard Kelley Janice Hird Rich Rothe Harold KuTball Dana Little Holly Donanie Hank Tyler R.G. Blakesley Aline LaChance Charles Colgan Gro FlateW Lorraine Lessard Sherry Hanson Naomi Edelson September 1985 T Clerl B E X H I B I T S Coastal Advisory Committee Coastal Advisory Committee Minutes of Meeting Minutes of Meeting, January 8, 1985 January 8t 1985 Summary of Action A. Call to order. The meeting was called to order by C.1:a.-lie Colgan, Direct of the SPO Policy Division, at 10:05 a-m- Charlie er--lainp--5 Dick I.- Committee members reviewed their agency's coastal tI@Llgand coastal Barringer was unable to attend and that he would chair the neetirig in Dic e ,oN issues statement with the Committee. There was . sion and absence. exchange of inf6rmation following each presentation. It was recognized that many agencies are addressing the same coastal issues from a different B. Introductions. Introductions were made and the Co=:tee welcomed George- perspective (e.g, throua@ regulation, planning, daily management, etc.) and Jacobson, Acting Director of the Center for Marine at=lies, as the we need to better coordinate our activities. University's representative. Alison Rieser, Director of tLe Marine law Institute, will assist Jacobson as the University's a:terns:-.e. 2. The SPO Weed to organize the agencies responses into a coastal priorities statement. A draft will be available in early February and it will serve C. Adoption of October 9, 1984 Minutes. The Committee eopte!, vith7ut as the basis for the CAC February meeting. modification; the previous meeting's minutes. 3. The Committee was briefed on the new U.S.- Canadian boundary and its effect D. Agenda on oil and gas activities and fisheries management; the 1985-86 coastal program; and a proposed research sysmposium on the Gulf of Maine. Discussion Items 1. Coastal Priorities Statement. Attendance Charlie Colgan provided a brief overview of why ':ne Ca=ittel- is preparing a coastal priorities statement and ex- ne- bow the Members Statement will assist in reauthorization of the :oastal Zone Management Act (CZKA) by Congress. George Jacobson University of Maine, Center for Marine Studies I Spencer Apollonio Department of Marine Resources Hank Warren explained the DEP is heavily involve: in the coastal arE 4@- Died Anderson Department of Conservation and identified three major activities for 1985: maintaining 00 Hank Warren Department of Bavironmental Protection enforcement staffing levels, continuing to deve:-'.-- a s--able state I John Walker Regional Planning Commission Directors Association policy on sand dunes and beaches, end addressing @he a.=ulatlve imPE of coastal development on our coastl resources. Relat-ed to these Alternates activities were the possible shift of shoreland zcminE responsibilities from the SPO to the DEP and a r-a-ping prog= to Ken Anderson Dept. of Inland Fish & Wildlife assist the Board of Environmental Protection in ni2ingz wise and Rob Elder Department of Transportation uniform decisions on sand dunes/beaches. Others Dick Anderson reported the DOC is very intereste! in devel=-ing a geobased information system that would organize tte ex--.ensive natur. Mark Sullivan Iand & Water Resources Council resource data and mapping files each state age=7 has. Some discussion focused on the beach/sand dune data t@e Board has indical Bolly Dminie State Planning Office Charlie Colgan State Planning Office they need and it was agreed this should be the fLrst e:ement of the David Keeley State Planning Office, Coastal Program overall system. Dick also indicated that improvtng ccestal access Al Hutchinson Dept. of Inland Fish & Wildlife should be a priority for 1985. He suggested this shouad include bol legislation to clarify the issaes raised in the --*n8ir.E Wells Beach case and providing additional public access site@ (e-Lr, paeks, boat launches, etc.) page 1 of 5 page 2 of 5 En t7i rt, H Spencer Apollonio explained the two most pressing issues are to Information Items coordinate research in the Gulf of Maine and the development of new fishing gear that will allow the State to effectively manage fish 2. Effects of the New U.S./Canadian boundary stocks. Concerning research in the Gulf of Maine Spencer explained that the University, the Bigelow laboratory, and DMR are planning to Charlie Colgan and Spencer Apollonio spoke briefly about tke new hold a symposium in September. boundary and what was happening. Spencer indicated fleet L:!cess to Rob Elder reported the DOT is looking to complete their cargo terminal those areas normally fished by the U.S. is essential to Ma@ntain program and wants to begin a pier rehabilitation pro&-am. This would current U.S. fleet size. He also discussed two proposals resultL-Ig look at existing piers, identify what improvements are required, and from the World Court decision. The first is a counter-vailing d--ty document how the piers would be used. DOT is also interested in the proposal which is supported by some fishermen groups. The secor.4 is engineering implications of sea level rise, coastal infrastructure and Governor Brennan's proposal to the New England Governors Conferennze planning, and harbor management as it relates to competing uses along that would provide for the cooperative development of North Amer--can the waterfront. markets. John Walker reported on an informal RPC survey his staff performed 3. 19B5436 Coastal Program that indicated growth management and development pressure are the most significant issues coastal communities mist deal with. He stated David Keeley explained Maine could receive $1.6 million in June, 1955 there is a very real need to continue to build the capacity of for a one-year grant. The State will begin to assemble ar. applicatior communities to meet these issues head-on. in March for submission in May. The Advisory Committee will ple7 a key role in allocating @kmds at the State and local level. George Jacobson explained how the University created the Center for Marine Studies and that it involves the Sea Grant Program, the Darling The Committee was also told about a new part of Maine's Con-s-al Research Center, the Marine law Institute, and the Migrating Fish Program (Section 306A of the CZMA) that will allow for the construction of waterfront parka, acquisition of land for public Research Institute. He indicated the Sea Grant Program is doing very coastal access, and waterfront revitalization. well and is one of the strongest Sea Grant Programs in the country. Some discussion focused on the Long Range Plan: A Framework for Research, Education and Advisory Service Activities which will be 4. Bay of Flundy Tidal Power Project & Proposed Workshops. revised this year. It was agreed the CAC and the Sea Grant Program should wori cooperatively on the Plan. At a latter discussion, David Keeley and Spencer Apollonio spoke briefly about two Charlie Colgan and David Keeley agreed to serve as SPO representatives workshop/symposium proposals. Both are intended to coordinate to advise the Sea Grant Program. research in the Gulf of Maine. Althoug@ the outcome of ea-@ 'was to be slightly different it was agreed to try and combine the effc-ts. David Keeley explained the SPO thought the Coastal Program should OCS oil & gas leasing. focus on coastal development and its management implications. These 5. include growth and land use controls, public access, natural resources protection, and waterfront development. Charlie Colgan explained to the Committee Lease Sale 82 was callef off due in part to the World Court boundary decision and oil cocpany@ Al Hutchinson representing the non-game program in the IF&W said their disinterest in.frontier areas. priority is to complete the coastal marine wildlife inventories they began several years ago. Two major sections of the coast (e.g, 6. Others. Kittery to Casco Bay and Bucksport to Calais) need to be compleited. Ken Anderson, Spencer Apollonio and Dick Anderson spoke aboLt coe-stal He indicated there were very clear and broad management implications access for 1995 and the funds available to improve it. Dis-=Ssim of this work. He stated that earlier work documented that 75% to 80% focused on the gas tax, the Dingle-Johnson Expansion Act, IAWCON of Maine's coastal wildlife is being supported by only 25% of the funds, and Section 306A of the CDfA. It was agreed we must coorLLnate habitat. There is a need to identify where these critical habitats the expenditure of these funds. The SPO will prepare a proposal for are. the Committee to consider at its next meeting. Page 3 of 5 page 4 of 5 John Walker raised the issae of ancillary development related to the State's port development effort and the need for a comprehensive development strategy. After the meeting John agreed to prepare a statement articulating this issue for the Committee to review. Adjournment - The Committee adjourned at 11:55 a.m. dk/20c CD page 5 of 5 Coastal Advisory Committee Coastal Advisory Committee Minutes of Meeting, April 11, 1985 Minutes of Meeting Summary of Action April 11, 1985 A. Call to Order. The meeting was called to order by Dick Barringer at 10:15 a.m. 1. Committee members discussed their ranking of the twenty coastal issues in the Coastal Priorities Statement. Members then developed a concensus on the six most pressing coastal management issues including: B. Adoption of January 8, 1985 Meeting Minutes. The Cormnittee adopted, without modification, the previous meeting's minutes. A. Incremental Development & Growth Management B. Natural Resource Data Base C. Agenda C. Technical Assistance, Public Education, & Enforcement D. Economic Planning & Developffent Discussion Items E. Public Access to the Shoreline F. Marine Resource Management 1. Coastal Priorities Statement David Keeley explained the purpose of the Coa stal Priorities Statement 2. The State Planning Office requested comments,on the Coastal Priorities is to bring together all priority coastal management and policy issues. The Statement, when completed in April, will serve to gL:L:S-. Statement and agreed to revise it by April 22nd. It will then be printed the Committee's decisions on the 1985-86 Coastal Program and provide a and distributed to all members and other interested parties. context of coastal management to other groups. 3. The Committee was briefed on anticipated funding levels and the schedule David provided an analysis of each member's ranking of the priorities for the 1985-86 coastal program, reauthorization of the Coastal Zone listed in the Statement. These were: Management Act by Congress, coordination of coastal access funding, the 1985-86 local and regional grant programs, and Coastweek 185 activities. Priority of Members Page Ln Statement Attendance Incremental Development & Growth Management 5 p. 21 Natural Resource Data Base. 4 15 Members Technical Assistance & Enforcement 3 19 Marketing & Planning Marine Facilities 3 25 Richard Barringer State Planning Office Long Range Economic Planning 3 26 Maine Coastal Act 3 17 John Walker Regional Councils Public Access 3 18 Alternates Marine Resources 3 29 31 - gear conflicts Hollis McClauflin Dept. of Environmental Protection - boundary & better coordination Ken Spaulding Dept. of Conservation Hydrologic Resources 3 9 Ken Anderson Dept. of Inland Fish & Wildlife Rob Elder Dept. of Transportation Penn EstabroDk Dept. of Marine Resources Ken Spaulding explained the development of a natural resource data base Others (GIS) was a very high priority for the Department. Ken Anderson questioned the status of the Land & Water Resources Council deliberations on a GIS. Mark Sullivan Land & Water Resources Council He recalled DEP and DOC had a joint resolution with the Council on a GIS, that funds in the fa4 were available through U.S. Geological Survey, that a David Keeley State Planning Office Holly Dominie State Planning Office Data Management Subcommittee of the Council was responsible for Gro Flatebo State Planning Office coordinating a GIS, and that the MIDAS system established by the State John DelVecchio State Planning Office failed due to a lack of State commitment. Mark Sullivan said h- did not think the Council's work on a GIS had progressed beyond the discussions last fall. dk/5/09a Minutes of Meeting page 2 Minutes of Meeting page 3 Committee members agreed natural resource data was spread throughout, State, regional, and local governments and that there was a real need to coordinate this data. Some discussion focused on what data should go into The committee then selected the top six most important coastal n&nagement GIS but no decisions were made. issues. These included: allolly Dominie explained the results of a April 2nd ad hoc meeting at the 1..Cumulative impact of incremental development & growth mana-Zement State Planning Office on the issue of cumulative impact of incremental 2. Natural resource data base development. Agencies at this meting included SPO, DEP, NRCM, the 3. Technical assistance, public education, and enforcement regional councils, IF&W, and the Marine Law Institute. 4. Economic planning and development 5. Public access to the shoreline Holly distributed a study proposal to assist the State in addressing the 6. Marine resource management management of incremental development when It has adverse effects on natural and cultural resources. Considerable discussion ensued on just what cumulative Impact was, what laws currently dealt with it, and the Information Items experiences of DEP in administering the laws. The Committee agreed cumulative impact was one element of growth management and that nearly all 2. Time schedule for 1985-86 Coastal Program priorities in the Statement were fashioned by growth and development pressures. David Keeley distributed a handout that explained Maine is proje:ted to receive $1.6 million for the 85-86 grant program , will subtr--',: an Members were requested to review the study proposal and provide comments, application to NOAA in late May, and expects to begin the Progra7- in if any, to Holly. July, 1985. I David Keeley and Hollis McGlauflin discussed different aspects of the 3. Reauthorization of the Coastal Zone Management Act Ln technical assistance and enforcement priority. John Walker commented this was extremely important and that municipalities are at the front lines. David Keeley explained the House held reauthorization hear-ngs an Consequently, they must be provided with skills necessary to address the March 28 and April 2. He distributed a brochure prepared by the multitude of natural resource issues. Coastal States Organization on reauthorization. Rob Elder and John Walker briefly discussed marine facilities planning and 4. Local and Regional Program long-range economic development. The Committee agreed these, as well as growth management, were very similar in many respects. John DelVecchio distributed a handout on the 1985-86 local and Ken Anderson explained developing a Maine Coastal Act was Inland' Fish & regional program. Wildlife's highest priority. The Department recognized federal funding for 5. Coordination of Coastal Ao0ess Fbnding the Program was going to be reduced and perhaps eliminated. At the saw time the legislature has no official expression of interest in coastal Gro Flatebo explained the SPO, DMR, IF&W, and DOC were goi-L: to meet management and few State funds are allocated for this purpose. The Committee agreed this was a long-term high priority issue that they needed in May to coordinate the allocation of funds distributed b, the State to begin work on. Several members suggested getting the Legislature to act for public access projects. on a resolve would be a first step. 6. coastweek 1985 Penn Estabrook explained there was a need for the Coastal Program to have Gro Flatebo distributed a handout on Coastweek 1985. It sa,7estei th. an active role in marine resource management and that the Coastal State make a commitment to Coastweeek and that we begin to plan for it Priorities Statement should reflect this. He indicated there was a very now. real need for coordinating management efforts in the Gulf of Maine. Hydrologic resources, more specifically ground water and wetlands, were a Adjournment The Committee adjourned at 12:25 p.m. concern to Rob Elder and others. This discussion lead back to the need for a GIS. dk/5/09 STATE OF MAINE EXECUTIVE IDERARTMENT STATE PLANNING OFFICE JOSEPH E. BRENNAN RICHARD E. B-R,N3=_= GOVERNOR aREC@@ ADVISORY BULLETIN No. 3 July, 1985 This advisory bulletin Is to Inform you of'plannlng-related Issues W opportunities affecting Maine municipalities. Further Information In available from Bob Blakeley or the key contact people Indicated. Contents Page GUEST FEATURE: PORTLAND WATERFRONT by John Ferland ........... 2 CRITICAL AREA AWARDS ......................................... 2 Lq REAUTHORIZATION OF THE COASTAL ZONE MANAGEMENT ACT ............ 3 LOCAL GRANTS .................................................. 3 LEGISLATIVE HIGHLIGHTS ........................................ 4 ISSUES & NEW INITIATIVES ...................................... 6 Coastal Management Priorities ............................ 6 Ground Water Initiatives ................................. 6 Coastal Access--the Wells Case ........................... 7 Submerged Lands ......................................... 7 Poverty In Maine ......................................... 8 H Downtown Revitalization .................................. 8 UPDATES ....................................................... 9 Enforcement of Local Land Use Laws ....................... 9 Sears-Island Cargo Port .................................. 9 1-3 PEOPLE ........................................................ 10 NEW PUBLICATIONS .............................................. 12 V@ I BA STATE STREET. STATE HOUSE STATiON 38. AUGUSTA. MAINE 04333 TEL@ (2071289 3"E' 3' Page 2 GUEST FEATURE: PORTLAND WATERFRONT by John Ferland REAUTHORIZATION OF THE COASTAL ZONE MANAGEMENT ACT John Ferland Is & reporter for the Portland Evening Express. For Congress is currently considering bills to continue tne the past 3 ,12 ye ara tie 'lit 3 been following developments along po'. .1 and's vaterfront very closely. The opinions expressed are his federal -St3te-local partnership in coastal management prom.,ted by V, own and do not necessarily reflect tnose of the State Planning Office. Coastal.Zone Management Act. Both House and Senate committees have --Ed. reported out bills reauthorizing the Act. Full Congress icna I a:@tioa should occur this summer. For more information contact DS71d Keeley A few years ago the idea of waterfront renewal in Portland was at the SPO, 289-3261. considered a joke. Decades of government inaction and investor indifference helped LOCAL GRANTS turn the area into one of the most dilapidated sections of the city. 0 Planning Grants Available Various interests struggled for a consensus about the waterfront's future, only to have study after study relegated to a shelf. The State Planning Office is accepting applications from Maine communities for Community Development and Coastal Frogram Today Portland's waterfront is one of the fastest-changing in the Planning Grants during July and early August. country. It is in the midst of $117 million worth of public and private projects. Maine Savings Bank, which has financed much of The purpose of the Community Development Planning Grants is Portland's citywide revitalization over the years, now considers the to support the development of local strategies addressing waterfront the "hot" part of Por,tland. identified local community development problems. Local community development problems limit employment opportunities, adequate Portland is using several planning techniques to guide the housing, or public facilities for low and moderate in--ome people. transformation of its waterfront. Among them are aggressive pursuit All Community Development Planning Grant applications must be of grants and creative financing techniques to minimize financial postmarked no later than Saturday, August 3. 1985. obligations by local taxpayers, the formation of public and private partnerships, and the initiation of projects and principles to enhance Coastal Program Planning Grants are available to sup;@ort both the mixed use and marine aspects of the waterfront. high priority coastal planning and management projects in Maine's coastal communities. These federal funds may be used to support But the factor that has given waterfront planning its structure waterfront revitalization and development, management of coastal is zoning. development, shoreland access and recreation, and resource management planning projects. All Coastal Program Planning Grpnt Waterfront zoning is the remains of a controversial development applications must be postmarked no later than Saturday, August study unveiled in late 1981 by the American City Corp. of Columbia, 10, 1985. Md. ACC is a subsidiary of the Rouse Co., probably the most famous waterfront development firm in the country. Rouse's work has included A total of $150,000 for Community Development Planning projects such as Boston's Faneuil Hall Marketplace and Baltimore's Grants, and $200,000 for Coastal Program Planning Grants i-s Harborplace. available. A 20% local match is required, and all grants will be --continued on page ten-- awarded on a competitive basis. If you would like to learn more about either of these planning grant programs or receiving a funding application, please contact the State Planning Office at 289-3154. For CRITICAL AREAS AWARDS assistance with the Community Development Planning Grants, you The 1985 Critical Area Award was prevented to George sawyer of may also contact tne Regional Technical Assistance Przvider in Ashland and to the Coburn Land Trust by Governor Joseph E. Brennan an your area. May 22nd. The Governor noted the outstanding contributions both recepients have made in protecting @rlticsi areas. George -Pete- Sawyer voluntarily set aside two significant old-grovth forest stands 0 Community Revitalization Grants in Aroostook County. The Coburn Land Trust made a major conservation gift of 1000 acres of Bog No. 5 and Orl associated Jack pine stand as On March 22nd the SPO received 44 applications t.-tall-frig well as a conservation easement on 17,000 acres along the shore of Attean Pond near Jackman. $16.8 million for Community Revitalization Grants under tr.=- 19E5 The focus of the Critical Areas Program this summer will be on Community Development Block Grant Program. Awards for the $4.5 unique alpine areas and sub-alpine forests on Bigelow mountain and the MahooSUC Range, patterned fens and bogs, inland great blue heron nesting areas, and selected rare plants. Page 4 Page 5 million available are to be announced on May 24th. Competing LD 731, An Act to Im se Liability f h Grc-und li.he. 1 0 i.bility and P,.,7, Interference wit projects include housing, downtown revitalization, public Water Use, estab des for compensatory damages facilities, industrial parks, small business incubator buildings, Tor -any withdrawal or other use of ground water which causes community centers, and combinations of these elements. unreasonable interference with the.pre-existing use of ground water for reasonable household or domestic purposes. Reported out of A proposal to move up the 1986 Community Revitalization committee with an "ought to ss" as ame I Grant competition so that awards could be made I *n the winter of to the next session. pa nded, this bill was held over 1986 has been given initial approval by the Community Development Advisory Committee. Earlier awards will give funded communities 'D '61 An C' to Imple-e the Recommendations of the Kaine Land more opportunity to take advantage of the next construction & Water Resources Muncll Crunnd Water Policy Committee, extends seasIon. allthority to protect public water supplies by including ground water aquifer recharge areas under the jurisdiction of municipal land use For more information about this program contact Mark Ade.lson regulatory powers. It also proposes a regulatory approach to-the at the State Planning Office (289-3154). widespread ground water contamination problems associated with road salt and sand/salt storage piles, and provides for State financial 0 The,Development Fund assistance to municipalities for pollution abatement construction Creation of housing and job opportunities for low and programs. This bill was enacted as Public Law Chapter 479. moderate income people is the aim of a $750,000 Community LD 125, An Act to Establish a Maine Rivers Grants Program, has Development Block Grant Program fund from which grants are become Public Law 105. It creates a fund for making grants to local awarded quarterly. These funds are to be used by cities, towns, governmental or other agencies concerned with the protection of the plantations and counties for making loans to individual state's outstanding rivers. The fund is to be capitalized by businesses, corporations or developers. Applications for the donations and proceeds from the sale of a Maine rivers decal or Ul third round for awards this year are due at the SPO by July 19th, emblem. Ul and for the fourth round by October 18, 1985. For further information call Alain Ouellette at the SPO (289-3154). 11 91, Critical A;gtar7geram Ap roiations, provides $40,000 for 1 @86!67 to cnauct urv:;:pt identify significant 0 EPA Hazardous Waste Management Grants geological, botanical and zoological areas worthy of preservation and inclusion on the register of critical areas as mandated by the The U.S. Environmental Protection Agency (EPA) has announced critical areas law. This bill was enacted as Public Law 466, signed a grant program to fund innovative local and state hazardous by the Governor on June 27th. waste management activities aimed at reducing the dependency on land disposal. Funds will be awarded to cities and counties for LD 838 An Act to Protect Freshwater Wetlands, regulates the activities such as waste reduction, waste exchange, use of alteration tf wetlands that are 10 acres or more In extent, alternatives to land disposal, shared treatment and assistance to unforested, and not protected under existing environmental laws. it small quantity generators. For further information, contact Ms. also provides for the delegation of permit-granting authority to a Marty Madison, EPA (202) 382-2210. municipality at the municipality's request. This bill was enacted as Public Law 485, signed on June 28th by the Governor. LEGISLATIVE HIGHLIGHTS LD 1181 An Act to Strengthen State-Loc al Coo peration throdah Re ional CouAcils, under consideration in the Loca 1 8, County LD 1299, An Act Relating to Septic Syste M Pe1.mPit:, guarantees the ernment Committee, was held over until the Legislature next right of . proper ty owner to construct a sewage d al system for convenes. The bill would appropriate $500,000 annually from the which he has a valid permit, even though a neighbor Installs a well General Fund to support regional council and regional planning within the required minimum setback distance before the system is commission tasks, and require that regional planning commissions be physically installed, but after the permit is issued. Enacted as composed of at least 50% elected officials in order to qualify for Public Law Chapter 135, signed by the Governor on May 2nd. funding support. Three other bills affecting ground water stemming out of the work LD 1200,.An Act to Furthe Pr Significant and Outstanding of the Land & Water Resources Councilwere considered this past session Rivers and to Equalize their T;etom::ctt in 0 rganIzed munlcipa,'Iities and 1, and by the Joint Standing Committee on Energy and Natural Resources: LD Plant:Ctjon:, was opposed by the Administrat , . th 7 n. 731 was held over in committee, LD 961 was enacted as Public Law uld have changed the land use controls contained in last Chapter 479, and LD 1406 was withdrawn. year's nationally acclaimed Maine Rivers Act, and would have required substantial new changes to municipal shoreland zoning ordinances- L .Page 6 Page LD [email protected]_,. An Act to Amend the State's Zon,2:,.LTwRs received Enact legislation establishing a registration and reporting unani... ght to pass-, from the Energy & N. ources program for well drillers as a source of statewide ground water Committee, after being redrafted. The Act as endorsed amends the information. Subdivision Law to reflect the process for obtaining utility hookups established in the Shoreland Zoning Law by the 1983 Rivers Act. The Assess risks to public health from various drinking water Act also makes it clear that the burden of proof that a property owner contaminants. has received the requisite local permits rests with the property owner and not with the utility. This Act, replaced by LD 1514, was enacted Enact legislation to alleviate ground water contamination as Public Law 206, signed by the Governor on May 24th. problems from road salt and sand/salt storage facilities. Draft legislation to establish liability for interference ISSUES AND NEW INITIATIVES with an individual's right to ground'water. 0 Coastal Management Priorities -_ Provide local te-chnical assistance with water supply @nd source protection planning, protection of water quality, and In April the Coastal Advisory Committee of the Maine Land & decisions requiring hydrogeological information. Water Resources Council completed an assessment of the most significant resource management problems and opportunities in 0 Coastal Access --- The Wells Case coastal Maine in 1985. Its Coastal Priorities Statement provides a framework to guide local, regional and state coastal management Concern about coastal access has been underscored by and development decisions. litigation over public access to Moody Beach in Wells. Fifty property owners are sueing the State and the Town of Wells in an The Statement identifies twenty high-priority issues. Of attempt to establish their right to bar public use of the these, the Co-m-7ft-tee determined that the following six were the intert1dal area in front of their homes for recreation. most significant: Plaintiffs are asking the Court to affirm their rights to the beach to the low water mark, recognizing the rights of the public 1. Growth management and the effects of incremental development in the intertidal zone only for fishing, fowling, and navigation. Ul 2. Natural resource data management 3. Technical assistance, public education & enforcement The Moody Beach case is expected to be a landmark case 4. Economic planning & development because it could force a ruling on public rights in the 5. Public access to the shoreline intertidal zone. 6. Marine resources development 0 Submerged Lands Copies of the Coastal Priorities Statement are available from the State Planning Office. For further information contact A draft policy manual for the management of public submerged David Keeley, 289-3261. lands (including the bottoms of great ponds, tidal rivers and marine submerged lands from mean low water seaward to the 0 Ground Water Initiatives international boundary) currently is under consideration by the Maine Bureau of Public Lands. Leases for the use of the lands Several bills submitted to the 112th Legislature are the are the responsibility of the Bureau. product of report of recommendations to Governor Joseph E. Brennan from the Land and Water Resources Council. Prepared by The draft policy favors those uses which are most dependent the Council's Ground Water Policy Review Committee, the report on submerged lands (such as fish piers, marinas) and which recommends a series of legal, regulatory and administrative contribute most directly to jobs and the development of renewable actions. Some key recommendations are to: marine resources. Least desirable uses are those not dependent on the water and/or on submerged lands and which cause Establish a standing ground water committee of the Council Irreversible changes. by executive order of the Governor. Publication of the policy manual for public review is Speed up mapping of state ground water systems through the expected this summer. For further information contact Hollis Maine Geological Survey. Tedford, Bureau of Public Lands, 289-3061. Study the relationship between agricultural chemicals and ground water contamination. Page 8 Page 0 Poverty in Maine UPDATES The number of poor in Maine increased by 10,000 people 0 Enforcement of Local Land Use Laws between 1970 and 1980. According to a newly-released State Planning Office report, the entire increase was primarily among Many local code enforcement officers and plumbing inspector$ employable adults (ages 18-64). rather than the elderly, throughout the State recently participated in a series of handicapped and disabled, large families, and single parents with workshops and examinations designed to certify them to issue small children, those traditionally having difficulty providing summonses and prosecute land use law violators in District Court. for themselves. Maine Is also home for a large number of "near Procedures for prosecuting these violators were established last poor", most of whom are employed in low wage jobs. summer in the Maine Supreme Court's Rule BOK, adopted pursuant to. Unemployment rates In Maine are relatively low and job Public Law 1796, An Act Relating to Enforcement of Land Use Laws. growth has been rapid. The report attributes the increasing Rule BOK certification examinations have been offered poverty rate to low wages, highly seasonal employment and.major concurrently with the.workshops but also may be taken at a later increases in the cost of living caused by the rapid inflation of date. A basic text prepared by the Maine Municipal -Association the 1970's Over half of Maine's families have two or more is available to local officials, titled "Enforcement of Local workers in the labor force. Land Use Law Violations Using District Court Civil Rule 5OK.1 The SPO report examines social and economic conditions Examinations are;conducted by the Department of Human Services, affecting the poverty rate and considers how Maine's population Division of Health Engineering. and economy have changed in recent years, and the effects of For more information contatct the Div"ision of Health these changes for the remainder of the 19801s. Copies of the Engineering at 289-3826, or Rich Rothe at the State Planning report, entitled Pove rty In Maine. 171-19:gf.n`ao11up1e.n1ni Causes Office, 289-3154. have and Conditions, _ been di tribt@d to r ng commissions and local community development officials. For more 0 Sears Island Cargo Port information contact Joyce Benson at the SPO, 289-3261. Site preparation at the 50-acre Sears Island Cargo Terminal 0 Downtown Revitalization site in Searsport is underway, and construction of the access road on the island was also begun this spring. The Maine Downtown revitalization is more than repaired sidewalks, new Department of Transportation, in charge of the pori's U, lights and shade trees. Downtown revitalization requires development, is working closely with local officials and- self-confident action and leadership by the private sector. A overseeing all major contracting work. large private investment in one location, rather than numerous smaller ones, is a key to success. The infusion of federal Dredging at the port site began late last winter. By the dollars Is decreasing. These were recurring themes during a end of June, three dredges will have removed 650,000 cubic yards two-day conference attended by over lbo people representing over of material. Construction on the cargo pier itself, which will sixty communities in Lewiston on May 6 and 7, sponsored by the cover more than four acres, is expected to begin later this State Planning Office and the Downtown Development & Management summer. Corp. of Lewiston. The Maine Department of Transportation is working with the A bright spot for Maine communities, according to Leonard U.S. Cosst Guard concerning issuance of a permit for the access Dow of the SPO, is the possibility of the State's becoming part road connecting the 900-acre Sears Island to the mainland. In of the National Main Street Center Program, which could provide April, Portland Superior Court Judge Edward Gignoux revoked an technical assistance and help in organizing. For further earlier Coast Guard permit for the access road. information on downtown revitalization, contact Leonard Dow at the State Planning Office, 289-3154. Or Page 10 Paze 11 I Some companies have opted to relocate to the Portlan4 Fist Pier PEOPLE because they view it as safe from encroachment by non-marin- development. Companies have invested about $3 million in "ilafngs Mark Adelson appointed community Development Pro ram Mans and about a dozen vessels are renting berths at the pier. =@he =:)ne has also been the site of a new $1 million boat repair yart, a S2.5 Richard E. Barringer has appointed mark Adelson to be Community million relocation by a marine servic6s company, and $600,. 30 w=rth of Development Program Manager within the SPO's Community Assistance building and structural improvements at one of the major Division, replacing Janice Hird whose promotion to Division Director was announced In the previous Advisory Bulletin. Formerly Community marine-oriented piers. Vevel opm ent Director for th Town of Farmington. for the past three years Mark has been instrum:ntal to the success of numerous community Development Block Grant programs throughout Maine as a contract In another instance, a group of fishermen are trying t: buy a administrator for the spo. wharf because of non-marine development in the mixed use zone tLat is eliminating or changing berthing areas. A major project in the mixed In other staff cnange3, Sam Jones has been promoted to anager of use zone Is an 85-unit condominium proposal at Central Wharf, wnere Management Information Systems in the Community Assistance DM1vision. Her posl tion of Financial Specialist has been filled by Bob Williams. about 25 groundfishing and lobster boats berth. The mixed use zone Previously Bob was the Business manager for the Baxter State Park prohibits displacing fishing vessels, but opinions are divided Cn the Aut hority. He will be responsible for assisting local Community Development Block Grant programs wito financial management systems and compatibility of boats and housing. reviewing then for compliance with financial requirements. Despite Its successes and promises, however, the maritime zon*e is under pressure to change. The city council recently changed the text of the maritime zone to allow more types of businesses at publicly owned ferry terminals. Ln (The intent was to have a new Casco Bay ferry terminal gene-ate 00 revenues from privatel owned shops, offices and restaurant to ensure PORTLAND WATERFRONT -- continued from page two its financial succesM Some developers and planning board members, believe tne text ACC proposed a five-year, $65 million plan for offices, shops and change may set a precedent. To them, the strict maritime zone doesn't condominiums. A business group formed to oppose the plan and protect appear so strict anymore. A couple of major projects are in the tne waterfront's commercial marine businesses. waterfront's future and observers are watching with interest to see After a tumultuous period Of Public debate about the how the city handles zoning issues. appropriateness of ACC's ideas, Portland city officials@ agreed that City Manager Tim Honey makes an annual report to the city council the commercial character of the waterfront would be threatened by the on waterfront activities. The latest report, published in 7anuary, uses predicted by ACC. Instead of endorsing ACC's specific project provides updates on 29 development categories and gives a ;roperty-by proposals, however, councilors approved a zoning plan in 1983 that property listing of improvements over the last few years. Feop:-? may would guide development. receive a copy by contacting the Portland Planning Department. Prior to the zoning change, most of the waterfront had beer) zoned to allow a variety of activities. The new zoning restricts such uses to four wharves opposite the trendy Old Port Exchange and the landward side of Commercial Street. The rest of the waterfront is in a protective maritime zone. During the zoning debate some property owners argued that the maritime zone was too strict, precluding flexibility necessary to make property profitable. That seems to have been the case for at least one prominent property, but other parts of the zone have provided opportunities. FY Page 12 NEW PUBLICATIONS Several new publications are now available without charge from the SPO (limit: 2 per municipality). Contact Beverly Gilcreast.at SPO's Date Center, 289-3154. 1. Enforcement of Local Land Use Law Violations Using District Court Civil Rule 80K -- A handbook prepared. by the Maine Municipal Association which describes how local land use violations may be prosecuted by local code enforcement officers In District Court. The handbook is the basic text for workshops and an examination conducted by the Department of Human Services for certification of code enforcement officers for this purpose. 2. Guide to Federal Consistency Under Maine's Coastal Program -- A revised handbook describing activities reviewed by the State for consistency with Coastal Program core laws (such an direct federal activities and federally-permitted or funded activities) and the review process. 3. Coastal Priorities Statement -- An assessment by the Coastal Advisory Committee of the Maine Land A Water Resources Council of the most significant resource management problems and opportunities in coastal Maine In 1985. 4. Poverty In Maine 1970-1980, Volume 1: Causes and Conditions -- A study of social and economic conditions and trends, one of a series of four volumes examining poverty In Maine. Volume 2, is a statistical abstract of census and other data concerning the condition of poverty. Volumes 3 and 4 contain detailed statistics from the 1980 Census on social and economic conditions and housing on a community and regional basis. This bulletin is funded in part by Maine's Coastal Program through a grant from the federal office of Ocean and Coastal Resource Management (OCRM), National Oceanic and Atmospheric Administration. r WELLS '11'r'c %L NATIONAL ESTUARINE SANCTUARY The Wells National Estuarine Sanctuary was established to ensure resy-troe protection and to provide for long-term estuarine research, education arid o---7 interpretation in the Webhannet and Little River estuaries. The Sanctuary p ides students, researchers, and the general public an opportunity to learn rov about natural and human processes within an estuarine area. It was established pursuant to Section 315 of the Coastal Zone Management Act of 1972 and is supported by the National Oceanic & Atmospheric Administration (NOAA), U.S. Fish and Wildlife Service, the State of Maine, and the Town of Wells. The Sanctuary is comprised of approximately 1,500 acres of wetland and ADVISMY BULLETIN undeveloped upland in the Webhamuet and Little River estuaries of southern Maine. The land within the Sanctuary is owned by three levels of government; all of which have entered into cooperative agreements for the joint management No. 2 April, 1985 of their holdings as a National Estuarine Sanctuary6 This Advisory Bulletin is to inform you of events occurring at the Wells Education and Research Activities National Estuarine Sanctuary. For further information, please contact Mort Mather, Laudholm Trust, P.O.Box 1007, Wells, Maine 04090, or David Keeley, Maine State Planning Office, la4 State Street, State House Station # 38, Augusta, Botanist selected to perform Botanical Survey Maine 04333. The State Planning Office has hired a botanist to prepare a vegetation map of the Sanctuary and to develop species lists of the existing plant cmmxmities. Contents The project is supported by the Department of Conservation and.the Critical Areas Program. The Wells National Estuarine Sanctuary .......................... 2 Lissa Widoff will begin work in late May and collect data throughout the growing Education and Research Activities seasoh. The project will produce important base line environmental infornation Botanist selected to perform Botanical Survey ................... 2 on the Sanctuary and will assist in implementing the Sanctuary Management Plan. Consultants hired to help prepare Interpretive Plan ............. 2 State Planning Office announces availability of People interested in learning more about the survey should contact Gro Flatebo Research Funding ................................................ 3 at the Maine State Planning Office (207) 289-3261. Renowned estuarine scientists to visit Sanctuary ................ 3 Educational Brochures to be printed in June ..................... 4 Sanctuary subcommittees are busy ................................ 4 Consultants hired to help prepare Interpretive Plan Sanctuary Administration Departure of Refuge Manager Maury Mills ......................... 4 In early April, after carefully reviewing several excellent proposals, the team Town prepares to hire Sanctuary Manager ......................... 5 of Mitchell/Dewan, Risk, Clough, and Terrian Architects was selected to help State Planning Office applies to NOAA for remainder prepare the Interpretive Plan for the Sanctuary. Their extensive experienze in of Acquisition funds ............................................ 5 this type of work and enthusiasm will be a great help to the Sanctuary. NDAA provides final comments on Management Plan ................. 5 Laudholm Trust continues to raise funds ......................... The consultants, working with a Sanctuary Steering Committee between May and Activities-in the Wildlife Refuge ................................ 6 September, will prepare the: 6 1- to a) interpretive plan that identifies significant Sanctuary interpretive features and describes ways of presenting them so local schools, universities, researchers and the public can better understand and enjoy them; -2- b) an access plan that describes how we can develop a trail system Educational brochures to be printed in June throughout the Sanctuary without jeopardizing its unique and fragile natural resources; and The State Planning Office completed the text'for four educational brochures in April and expects to print them in June. The brochures include: C) a facilities plan that describes how we can use the existing building and grounds for a variety of Sanctuary activities such as a visitors - What is an Estuary; center, sanctuary managers residence, research laboratory, and - Sand Beaches of the Sanctuary; auditorium. Birds.of the Sanctuary; and Those people interested in learning more about the project should contact Owen The Wells National Estuarine Sanctuary Grumbling, Chairman of the Steering Committee at P.O.Box 1007, Wells, Maine 04090. The existance of the brochures helps to further the educational purposes of the Sanctuary and broaden the public's understanding of estuarine areas. The brochures will be available at the Sanctuary this summer. State Planning Office announces availability of Research Funding In late-April the State Pianning Office announced that funding was available from the National Oceanic & Atmospheric Administration (NOAA) to perform estuarine related research in the Sanctuary. A packet of materials containing a description of the eligible research activities and proposal guidelines was sent to estuarine researchers throughout New England. Researchers must submit proposals by June to the State Planning Office. These will be evaluated and forwarded to NOAA with recommendations for funding. NOAA expects to make awards this fall and research projects may begin in early 1986. Sanctuary Subcommittees are busy People interested in additional information should contact David Keeley at the Maine State Planning' Office.. The Education & Research subcommittee continues to meet on a monthly basis and is developing a proposal for a data search of scientific and cultural information pertaining to the Sanctuary. They have also assisted in selecting the interpretive consultant, coordinating the State Planning Office request for research proposals, and in commenting on the educational and research components 0 f the Sanctuary Management Plan. Primary and Secondary Education subcommittee is currently surveying local The teachers to determine how the Sanctuary can interact with local school systems Sanctuary can be developed to complement and how the educational programs of the local programs. The Subcommittee was successful in obtaining an intern for the a,, r to collect curriculum and teaching materials applicable to the Sanctuary. The Building subcommittee received a small foundation grant to assist in the structural evaluation and to prepare drawings of the Laudholm Farm buildings to be acquired by the Town of Wells. In March they hired a consultant to work with Renouned Estuarine Scientists to visit the Sanctuary them and they expect to complete this project this fall. Two conferences of regional and national significancd will use the Sanctuary this summer as a natural field laboratory. On June 17th the National Association of Wetland Managers will convene in Portland to discuss wetland SamUsm7 Administration management and protection. Then in late July the Estuarine Research Federation will hold Its bl-annual meeting at the University of New Hampshire in Durham. This conference is expected to attract in exoess of 800 estuarine researchers Departure of Refuge Manager Maury Mills and scientists. It is with regret we announce the departure of Refuge Manager, Maury MIlls. The two conferences will use the Sanctuary as a site for field trips to acquaint Maury was involved in establishing the Sanctuary In 1982, was of great researchers with-th6 Sanctuary, to explain the research opportunities It offers, assistance in beginning cooperative management of the Sanctuary, and trill be and to exhibit Its unique natural features. greatly missed. We wish him well at the Moosehorn Wildlife Refuge in Ca .lais. The Service expects to have a new manager in several months. In the Interim -3- John Lortie will fill-in for Maury. He may be reached at the Refuge Headquarters. -4- Town of Wells prepares to hire Sanctuary Manager Laudholm Trust continues to raise funds The Sanctuary Manager Selection Committee completed a 6ob description and The third payment on the Phase 11 property was made to the Lords on April 24, announcement for the manager's position. We expect to advertise the position In bringing the total paid on the 10D acres and buildings to $90,000. One MOM May and hope to have a manager on site by July. This committee, as de-scribed in pre-payment of $20,000 is due July 24th. The final payment of approximately $1 the Sanctuary Management Plan, Is responsible for soliciting, interviewing, and million is to be made as soon as federal funds are available. recommending an individual to be hired to the Town Manager. A grant of $20,000 was awarded by the Laird Norton Foundation for trail development. These funds are available for the construction of a trail this summer as well as other related activities. State Planning Office applies to NOAA for remainder of Acquisition Funds The Trust vill have three interns working for it this summer. One is funided through a grant from the National Trust for Historic Preservation and Yank--e In April, the National Oceanic & Atmospheric Administration (NOAA) notified the Magazine, another through the University of New England, and a third tFr-ougn the State Planning Office that the remainder of the funds for acquisition were E-a-ucation Intern Program. Each will support work being carried out by the available for Wells. We have submitted an application and expect a favorable Sanctuary subcvmmittees. response early this summer. This is a very important step towards completing land acquisition and starting on-site management. OEM" Activities of the Wildlife Refuge Refuge staff recently completed the preparation of the 1984 Annual Narrative- Report; drafted a Fishing Plan for the Refuge, conducted routine wildlife surveys and implemented a black duck banding program. A total of 68 black ducks, 13 mallards, and 2 black duck cross mallard hybirds were captured and banded. Routine migratory bird surveys of the Wells marshes were conducted on a weekly basis. Interesting observations included northern pintails in January and March; a common black-t-.--aded gull, a European species which has recently becoup more common along the northwestern Atlantic coast; and northern harriers (warsh NOAA provides final comments on Management Plan hawks) were occassionally observed hunting over the saltmarshers. By late March, early spring migrants, such as the killdeer, American woodcock, In late March the National Oceanic & Atmospheric Administration provided its red-winged blackbird, song sparrow and green-winged teal had begun returning to final comments an the Sanctuary Management Plan. The Sanctuary Advisory the Wells area. Committee has reviewed those comments and the comments were subsequently incorporated into the Plan. The State Planning Office is responsible for completing it and has sent a camera ready copy. to NOAA for printing. People interested in obtaining a copy of the Plan when completed should contact David Keeley at the Maine State Planning Office. C iNP -5- Drawings provided by D. D. Tyler. copyrighted -6- EXHIBIT D CONSIST12cy LOG. Section 12 issue/Activity Date Agency Subject Sears Island 12/20/84 Corps of Engineers Status of Sears Island suit and COE permit Ken Jackson condition necessary to meet before construction can begin. Scarborough 12/22 Corps of Engineers Called to discuss Scarborough navigation Project N. Avtges project and possibility of placing sand on Camp Ellis Beach. Consistency 1/22/85 SPO/COE Discussed information needed for Belfast beach project Joe Horowitz Consistency determination. Coordination 1/23 SPO/COE Discussed meting in Augusta regarding New Regional, Ken Jackson Office and review of S.P. General Permit. Dept. of Defense 1/24 SPO/U.S. Air Force Discussed final memorandum of Understanding on M.O.U. Dave Glass State/DOD coordination. Lighthouse 3/5 U.S. Coast Guard/ Discussed proposed maintenance of lighthouse facility facility P.V. Kaselis in Lubec. Consistency 3/6 DEP/SPO Discussed proposed Coast Guard activity in Lubec. Consistency 3/5 SPO/Acadia Nat'l Park Discussed proposed road and parking lot improvements Carroll Schell planned in Park. Consistency 3/8 SPO/Acadia Nat.11 Park meeting to review plans for road improvements Carroll Schell and to discuss local and State review requirements. Consistency 3/13/85 SPO/Town of Acadia Park road improvements. Mt. Desert Consistency 3/15 SPO/Acadia Nat'l Park Call to C. Schell regarding consistency determination not needed. Coordination 3/21 SPO/DEP Meeting with Licensing and Enforcement Directors to discuss consistency review procedures. Consistency 3/22 DWSPO/DEP/ and Meeting in Portland, Maine to discuss Corps' Army Corps actions to address conditions improsed on Piscataqua River dredging project. Coordination 3/27 New England/New York Meeting in Boston to discuss consistency and Coastal States and Army Corps SPGP's and related consistency issues. OCR14 Coordination 3/27 SPO/COE Phone conversation regarding beach erosion mitigation projects in Belfast and Rockland. Consistency 4/3 SPO/DEP Discussed setting up meeting with State agencies and Corps of Engineers regarding Belfast Beach Project. .Consistency 4/10 DEP concurrence with Ogunquit COE project. Consistency/ 4/17 Meeting in Rockland regarding South End Beach proposal Coordination also discussed Belfast. Consistency 5/7 SPO/DOC Spoke to Joe Kelley, state marine geologist, re- garding Belfast City Park Beach. Consistency 5/8 SPO/COE Spoke to Tc m Bruha regarding timing an consistency concurrence. Consistency 5/8 SPO/BH2M Engineering Question regarding discharge into river. Firm Consistency 5/13 DEP/SPO George Seel called about COE installation of underground fuel tank in Bangor. -63- -2- WHEREAS, the Land and Water Resources Council, In acc@jrdance with Executive Order #11, FY81/82, has established a Standing Committee for coordinating the actions of State agencies enJ developing a consistent State policy among them; OFFICE OF NO, 17FY 84185 NOWt THEREFORE, I, Joseph E. Brennan, Governor of the State of Maine, do hereby direct that: THE GOVERNOR DATE June 27- ICIRS 1. A final decision by the Board of Environmental Protection or the Land Use Regulation Commission Issued In accordanze with PROVIDING FOR THE COORDINATION OF A CONSISTENT the Maine Waterway Development and Conservation Act, STATE POSITION IN FEDERAL HYDROPOWER LICENSING PROCEEDINGS combined with action by the Board of Environmental Protection on water quality certification of the project pursuant to Section-401 of the Federal Clean Water Act, WHEREAS, interest in developing the hydropower potential of shall represent the official position of the State of Maine Maine's rivers has increased significantly in recent years; and regarding the subject application.; WHEREAS, the Legislature, through the 1983 Maine Waterway 2. The State's sole, official recommendations for any terms and Development and Conservation Act (38 MRSA S630-636), has declared conditions upon the federal license shall be those contained that "hydropower justifies singular treatment"; and that "it is in the Board of Environmental Protection and the Land Use the policy of the State to support and encourage the development Regulation Commission decisions, superseding all preliminary of hydropower projects by simplifying and clarifying requirements recommendations by individpal State agencies; for permits, wh1le assuring reasonable protection of natural resources and the public interest in use of the waters of the 3. All State agency comments submitted subsequent to State State"; and action on the subject project shall include a copy of the decisions rendered by the State permitting agencies; WHEREAS, the Maine Waterway Development and Conservation Act consolidated State regulatory authority for hydropower 4. All State agency comments submitted prior to action on a development into a single permit to be issued by either the Board State permit shall advise FERC that the official position of of Environmental Protection or the Land Use Regulation Commission the State is that established through the decisIons of the and action by the Board on water quality certification pursuant Board of Environmental Protection and the Land Use to Section 401 of the Federal Clean Water Act; and Regulation Commission; and WHEREAS, most applicants for hydropower projects to be 5. The Department of Environmental Protection and the Land Use located in the State must apply to the Federal Energy Regulatory Regulation Commission shall have responsibility to Commission (FERC) for a federal license or exemption; and intervene, in a timely fashion, on the State's behalf, in all FERC licensing proceedings for projects in Maine, and, WHEREAS, various federal laws and regulations require as appropriate, in selected FERC preliminary permit and applicants for FERC preliminary permits, exemptions, and licenses license exemption proceedings; and to consult with several State agencies with management responsibilities for natural resources, historic preservation, 6. Pursuant to this policy, the Land and Water Resources public safety, and energy policy; and require FERC to request Council's Standing Committee on FERC Coordination shall comments on hydropower development applications from these same monitor all State agency comments in FERC proceedings, and agencies; and provide for mediation by the Executive Secretary of any disagreements among State agencies regarding comments WHEREAS, the potential exists for conflict between federal submitted to FERC or the applicant. co licensing decisions and the permitting decisions of the Board of 2 Environmental Protection and the Land Use Regulation Commission; (This Executive Order supersedes Executive Order #11, FYBI/52.) rt P- -and 0 WHEREAS, effective State participation in FERC proceedings ::1 1-3 demands that comments from State agencies be communicated in a Jrph'E. Brennan clear, consistent and timely fashion, and that the State secure G ViRNOR status as an official intervenor i.n these proceedings; and United States Court of Appeals For the First Circuit No. 85-1098 BREYER, Circuit Judge. SIERRA CLUB, Plaintiff, Appellant, V. JOHN 0. MARSH, JR., ET AL., Defendants, Appellees. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. Edward T. Gignoux, Senior U.S. District Judge] _______________________ Before Campbell, Chief Judge, Having reviewed the administrative Bownes and Breyer, Circuit Judges ____________________ Edward F. Lawson with whom Peter L. Koff and Koff and Lawson were on brief for appellant. Kevin A. Gaynor, Assistant United States Attorney, with whom Cabanne Howard, Assistant Attorney General, and Richard S. Cohen, United States Attorney, were on brief for appellees. ___________________ August 9, 1985 ___________________ BREYER, Circuit Judge. This case embodies an argument about whether a cargo port and a causeway that Maine plans to build at Sears Island will "significantly effect the environment." 42 U.S.C. 4332(2)(C). Maine's Department of Transportation, the Federal Highway Administration, and the Army Corps of Engineers concluded that it would not; thus, they decided to fund, to grant permits for, and to proceed with, the project without preparing an Environmental Impact Statement ("EIS"). The Sierra Club sued the federal agencies, seeking to stop the project in the absence of an EIS. Sierra Club now appeals the federal district court's determination that the agencies' decision not to prepare an EIS was lawful. Having reviewed the administrative record, we disagree with the district court. In our view, the record reveals that the project will significantly affect the environment; and the agencies' contrary conclusion lies outside the legally permissible bounds laid down by relevant statues. 42 U.S.C. 4332(2)(C); 5 U.S.C. 706(2)(A). Hence the agencies must prepare an EIS. I The legal framework in which this case arises is fairly simple. The National Environmental Policy Act of 1969, ("NEPA") says that federal agencies must prepare a detailed -2- statement on the environmental impact of any proposed major federal action significantly affecting the environment." 42 U.S.C. 4332(2)(C)(i). The federal Council on Environmental Quality ("CEQ") has issued detailed regulations and explanations of NEPA's statutory terms which tell federal agencies how to decide when an EIS is needed and how to go about preparing one. See 40 C.F.R. 1500 et seq. (1984); Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations, 46 Fed. Reg. 18026 (1981). The CEQ regulations permit federal agencies to make a preliminary "Envrionment Assessment" ("EA") aimed at determining whether the environmental effects of a proposed action are "significant." 40 C.F.R. 1501.3, 1501.4, 1508.9, 1508.27 (1984). According to these regulations, the EA is a "concise" document that briefly discusses the relevant issues and either reaches a conclusion that preparation of an EIG is necessary or concluded with a "Finding of No Significant Impact." (called, in environmental jargon, a "FONSI"), Id. 1508.9, 1508.13. In this case, the Corps of Engineers and the Federal Highway Administration prepared or adopted EA's and concluded with "FONSI's." They therefore granted necessary permits and funding for the Sears Island project without an EIS. The Sierra Club claims that these findings of "no significant -3- impact" were "arbitrary, capricious, an abuse of discretion," and therefore unlawful under the Administrative Procedure Act. 5 U.S.C. 706(2)(A). The district court, after reviewing the fairly lengthy and complex administrative record, decided that the agencies' conclusions were sufficiently reasonable to be lawful. Our legal duty, stgrictly speaking, is to reveiw this district court conclusion. The purely legal issue that we face at the outset is what standard to apply when reviewing the district court. In part the issue involves the question of what standard courts normally should apply to the agency's decision. We have previously said that one challenging a decision not to prepare an EIS must show a "substantial possibility that agency action could significantly affect the quality of the human environment." Quinonez-Lozez v. Coco Lagoon Development Corp., 733 F.2d 1, 2 (1st Cir. 1984) (quoting Winnebago Tribe v. Ray, 621 F.2d 269, 271 (8th Cir.), cert. denied, 339 U.S. 836 (1980)). If the record reveals such a "substantial possibility" with sufficient clarity, the agency's decision (not to produce an EIS) violates NEPA. Depending upon the agency's reasons, a reviewing court might say that such an agency made a mistake interpreting NEPA or the CEQ regulaitons, or the court might say that the agnecy's "no significant impact" finding was simply "arbitrary, capricious, an abuse of -4- discretion," 5 U.S.C. 706(2)(A). Often these questions cannot be easily separated one from the other. But whatever verbal formulation it applies, the court in a case like this must essentially look to see if the agency decision, in the context of the record, is too "unreasonable" (given its statutory and factual context) for the law to permit it to stand. Quinonez-Lopez, 733 F.2d at 2 - 3 (citing National Wildlife Federation v. Appalachian Regional Commission, 677 F.2d 883, 889 (D.C. Cir. 1981); Committee for Auto Responsibility v. Solomon, 603 F.2d 992, 1002 (D.C. Cir. 1979), cert. denied, 445 U.S. 915 (1980)); see generally Gee v. Boyd, 53 U.S.L.W. 3756 (U.S. April 22, 1985) (White, J., dissenting from denial of certiorari); Shea, The Juditial Standard for Review of Environmental Impact Statement Threshold Decisions, 9 B.C. Envtl. Aff. L. Rev. 63 (1980). This case poses the additional (and somewhat difficult) problem of determining what standard we, an Appellant court, shold apply to the district court's decision upholding the agency. The reason this matter is a little difficult is that administrative review as typically practiced by the federal courts differs from the expectation of those who framed the Administrative Procedure Act in an important respect. Initially, the Act's authors apparently believed that district courts wuld review the reasonableness of agency -5- decisionmaking on the basis of a record created in the district court. Se generally Nathanson, Probing the Mind of the Administrator: Hearing Variations and Standards of Judicial Review Under the Administrative Procedure Act and Other Federal Statutes, 75 Colum. L. Rev. 721 (1975). Under this arrangement, the courts of appeals would play a limited role, reviewing, for example, a district court's factual findings for "clear error." Because of the way in which the findings and characterization of facts affect one's judgment about the 'reasonableness' or 'arbitrariness' of agency behavior, appellate review of a finding about 'arbitrariness' might also have been limited. Envolving practive, however, under special review statutes has led to courts of appeals normally reviewing the legality of agency decisionmaking on the basis of a record created in the agency. See, e.g., 47 U.S.C. 402 (providing for court of appeals review of PCC decisions); 29 U.S.C. 160(1) (same, NLRB); 15 U.S.C. 77i (same, SEC). Courts of appeals thus apply, say, the APA's 'arbitrary and capricious' standard to the agency record directly, without the intervening set of findings of a district court, which in turn has reviewed the agency's findings. Under these circumstances, a court of appeals review of a district court review of an administrative agency's record is an awkward legal animal. Are we to set aside such a district -6- court decision only if It Is 'clearly erroneous'? Fed. R. example, the district court's judgment turns on matters of Civ. P. 52(a). Or, are we to Ignore the district court and fact that It has determined, or upon evidence presented by simply conduct our own review of the administrative record? witnesses in court, or even upon lengthy district court Other cases, containing what we have described as a 'luxuriant proceedings in which knowledgeable 6ounsel explain the agency Is jungle of differing review descriptions," Quinonez-Lopez v. decisionmaking process in detail, we will show appropriate )rp., 733 F.2d at 3, do not Settle hesitation to overturn that judgment. Cf. Fed. R. Civ. P. the matter. Compare Lang v. Brinegar, 625 F.2d 812, 815 (9th 52(a) ("due regard shall be given to the apportunity@of the Cir. 1980) ("In determining whether the evidence was sufficient trial court to judge the credibility of the witnesses"); to establish [the need for an EIS) we are bound by the Anderson v. City of Besemer, 53 U.S.L.W. 4314, 4316 - 17 (U.S_ findings of the trial court unless they are clearly Mar. 19, 1985) ("clearly erroneous" standlard applies to erroneous.-), -with Save Our Wetlands Inc v. Sands, 711 F.2d factfinding even when district court factfinding is based on 1 634, 644 - 45 (5th Cir. 1983) (relying on district court trial "documentary evidence or inferences from other f 0@ acts"). But, 00 testimony And administrative record in determining that agency district court simply reviews a set of agency I . where the acted reasonably in failing to require EIS),' and Concerned documents and, applying the same legal standard as we apply Citizens on 1-190 v. Secretary of Transportati n, 641 F.2d 11 here, reaches a particular legal conclusion about the about the 3 Qst Cir. 1981) (court of appeals should review both agency Is 'reasonableness' of an agency's action, we have greater legal conclusions ana those of the district court) freedom to differ with the di strict court'i We believe our answer to this type ofquestion should characterization of agency behavior. be practical. We should be more willing, or Ve less willing, We have before us a case in which we and the district to differ with a district court about the 'r-e"onableness, or ourt are to 1apply the same legal standard to tfil.,,- c e..same agency 'arbitrariness, of an agency decision, dep .ending upon the record. The cour-t-24AP-D-0-i. 'of fact ani ndependent-I-Lndings particular features of the particular case tha t seem to make nejs5e,@- The district- court had somewhat greater a more independent, or a less independent, appellate court opportunity' than did we to explore the administrative record scrutiny of the administrative record appropriate. Where, for with the help of counsel; and it is more familiar than are we with the geographical area and circumstances out of which this suit arises. But these latter, offsetting factors are not proposal for Sears Island consists of three parts: (1) a 1,200- very weighty where, as here, the written administrative record foot solid-fill causeway that would connect Sears Island to is so comp Ilete. ba4&v#_yP, sbpul era!,We@& the mainland with a railroad line and . two-lane road; (2) a dry-cargo marine terminal designed principally for the shipping _gK of lumber and agricultural products, containerized carco, and, RDNS11stWasAegaJTy;apr-pe&. possibly at a later stage in the project, coal; and (3) an industrial park In an area adjacent to the cargo port. The precise nature of the industrial. park is now uncertain, for A the park's eventual shape depends on what businesses choose The record shows that Sears Island is an undeveloped, to locate there. The plans for the other two coirponents, wooded 940-acre island In upper Penobscot Bay. (See Appendix however, are definite, and the impact of those plans has been for maps of the isla .nd.) The island is connected to the discussed in great detail by various federal agencies which have examined the proposal. mainland by a gravel bar exposed only at low tide. The mainland area adja cent to the Island has been developed for Industrial Maine voters and government agencies have shown considerable support for the Sears Island project. Maine use; a chemical plant and a petroleum storage area sit on voters have twice approved bond referenda to finance the state's either side of the point 3ea!1pa to tbe gravel bar. Indeed, share of costs for the the causeway and port. State agencies Searsport (where the island is located) is one of the busiest ports in Maine. Those interested in developing Sears Island have recommended reconciling concerns about"the environment for industrial purposes have suggested using.i.C.'as a site for with those about economic growth by concentrating industrial a nuclear-powered electric generating pla w. development in Maine within several selected "coastal areas; nt, a*coal-fired power these agencies have designated the Searsport area (and two plant, a petroleum refinery, and an aluminum reduction plant. These proposals have received varying degrees of consideration, other municipal areas in Maine) *for the 'most constraining' but each has ultimately been withdrawn. The most recent heavy industrial develqpae_n_t7 (Maine DOT EA, vol. 3, at 4). The town of Searsport has prepared 'A Municipal Respc.,se Plar, ?IBM" WOMMM'M M'IMMMMMM M for the Industrial Development of Sears Island," which predict substantial economic benefits from the causeway/port/industrial park project but recommends that the town enact appropriate land use laws to control the level of industrial development. The town has recently enacted such laws and has zoned the island for industrial use. The town has also borrowed $400,000 for its share of the cost of constructing the causeway. B The record also reveals a lengthy, complex, and controversial history underlying the creation of the EA's (and FONSI's) here at issue. Federal review of the Sears Island project began in 1981 when the Maine DOT circulated a preliminary study for construction of a causeway from the mainland to Sears Island. At least one federal agency, the Fish and Wildlife Service, said the study was too narrow; it said that any environmental study should include the effects of the proposed port facility and related industrial development as well. Maine DOT, however, prepared an EA that focused only on the causeway. The Federal Highway Administration adopted this EA as its own, 42 U.S.C. 4332(2)(D), issued a FONSI, and approved federal funding for the causeway. At this point, at least four federal agencies -11- objected -- three 'environmental' agencies (the Fish and Wildlife Service, EPA, the National Marine Fishneries Service) and the Coast Guard. See 42 U.S.C. 4332(2)(C) ("Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved.") (emphasis added). These four agencies said that the EA was inadequate and that all three parts of the proposed development (causeway, port, and industrial development) should be considered together, in an EIS. Maine DOT then prepared another EA, this time on the port facility alone; the Fedeal Highway Administration adopted this EA and then issued another FONSI. Again, the three federal environmental agencies objected, and this time the Commerce Department's Economic Development Administration joined them. Again, these federal 'commenting' agencies asked for an EIS; and the Economic Development Administration stated that is would not consider Maine's request for funding without a combined EIS on "the three major components of the project: causeway, portfacility, and industrial park." Responding to this criticism, the Federal Highway Administration adopted a new document, prepared by Maine DOT, called an "Environmental Assessment Summary." The new document considered both causeway -12- and port, but It expressly disclaimed any need for consideration of "development on Sears Island outside of the current marine terminal project." On December 16, 1983 the Federal Highway Administration issued yet another FONSI for the causeway/port project. On the same day, the Army Corps of Engineers (the agency responsible for issuing permits for the project) released its own EA in respect to port and causeway, and, on the basis of that EA, issued a FONSI. The three environmental agencies criticized the Corps' EA. The Corps responded with a further "Statement of Findings and Environmental Assessment," and, after renewed criticism, issued a "Supplement to Statement of Findings." The Corps, like the Federal Highway Administration, concluded with a FONSI. Then, without preparing an EIS, it issued a permit allowing causeway and port construction to begin. At that point, the Sierra Club filed suit. C As this history indicates, we do not have before us the "brief" or "concise" EA of which the CEQ's regulations speak. 40 C.F.R. 1508.9. Rather, we have an 'EA' consisting of at least seven documents containing 350 pages of text, plus numerous pages of diagrams, maps, and technical drawings. They -13- include: EA on causeway. (prepared by Maine DOT for Federal Highway Administration), as revised (Sept. 1981) -- 30 pages EA on port facility. (prepared by Maine DOT for Federal Highway Administration) (Aug. 1983) -- 138 pages, plus 61 pages of appendices and 34 pages of technical drawings Summary EA on both causeway and port facility. (prepared by Maine DOT for Federal Highway Administration) (Nov. 1983) -- 17 pages plus 29 pages of responses to various agencies' objections Corps' first EA (Dec. 1983) -- 4 pages Maine DOT study. (prepared at the request of the Corps) reevaluating the environmental effects of building the causeway (April 1984) -- 110 pages Corps' statement of findings and EA. (July 1984) -- 15 pages Corps' supplement to statement of findings (Aug. 1984) -- 7 pages The agencies claim these documents support one conclusion, namely that the Sears Island project will have no significant impact on the environment. The very length and detail of these documents have posed something of a dilemma to the agencies, the parties, and the reviewing courts. On the one hand, one is tempted to argue that the very complexity of the documents shows that an EIS is needed. The EA's are far longer than the DEQ recommends. -14- see Forty Most Asked Ouestions, supra, 46 Fed. Reg. at 18037 (calling on agencies "to limit EA's to not more than approximately 10 - 15 pages"), and significantly longer than the typical full-blown EIS, see 40 C.F.R. 1502.7 (1984) (EIS should "normally be less than 150 pages and for proposals of unusual scope of complexity...less than 300 pages"). The CEQ has stated: Agencies should avoid preparing lengthy EAs except in unusual cases, where a proposal is so complex that a concise document cannot meet the goals of (CEQ regulations) and where it is extremely difficult to determine whether the proposal could have significant environmental effects. In most cases, however, a lengthy EA indicates that an EIS is needed. 40 Fed. Reg. at 18037 (emphasis added). In addition, the EA's reflect considerable disagreement among federal agencies over the documents' findings. Compare Quinonez-Lopez v. Coco Lagoon Development Corp., 733 F.2d at 3 (affirming agency's decision not to prepare EIS where five governmental agencies agreed that impact on affected area was of no ecological significance), with Silva v. Lynn, 482 F.2d 1282, 1285 - 86 (lst Cir. 1973) (finding EIS inadequate where proposal "drew heavy fire" from three federal agencies "with expertise...equal to or greater than that of (the lead agency)"); see also Grazing Fields Farm v. Goldschmidt, 626 F.2d 1068, 1071 & n.l (1st Cir. 1980); 40 C.F.R. 1508.27(b)(4) (in evaluating "significance" of -15- project's impacts, agency should consider "the degree to which the effects (of the project)...are likely to be highly controversial"). To announce that these documents -- despite their length and complexity -- demonstrate no need for an EIS is rather like the mathematics teacher who, after filling three blackboards with equations, announces to the class, "You see, it is obvious." On the other hand, one tends to recognize, as the appellees point out, that the lengthy documents reflect a thorough consideration of potential impact on the environment. Since these documents, at least arguably, already amount to an EIS in all but name, what is the practical point of requiring additional preparation of another document? This argument is well summarized in a Federeal Highway Administration memorandum contained in the record, which says: The critical issue is whether or not an EIS should be prepared. Several Federal agencies including, EFA, U.S. Fish & Wildlife, and the National Marine Fisheries feel that the project requires an EIS...Thus, the Maine DOT and the (Federal Highway Administration) are facedwith a decision. From a practical standpoint, there is nothing to gain from going with an EIS since there has been excellent coordination and exposure/consideration of environmental, social and economic issues. From a purely legal perspective, an EIS may be required per the CEQ regulations Section 1508.27, paragraphs (b)(1), (b)(6), and (b)(7), attached. Mr. (William) Richardson (the head of the Maine Division of Federal -16- Highway Administration] is well aware of the critical Issues of this project as an ElS despite the time, effor well as CEO requirements. Deep down, Bill feels that the public may be done a great injustice if the decision for an EIS is made. The processing would take an absolute minimum of 6 months if not more reasonably 9-12 months without any foreseeable benefits. (A. 373 74 (emphasis added).) After considering both of these arguments, we conclusive weight, one way or the other, to the simple facts of EA length, complexity, and controversy. These facts do not by themselves show that the EAs' conclusion -- "no sugnificant Impact" -- is correct, nor do they show It is incorrect. At most they show the practical wisdom of CEO's advice: the agencies would have saved time in the long run had they devoted their considerable effort to production of an EIS, instead of the production of doucments seeking to prove that an EIS is not needed. See Maryland-National Capital Park and Planning Commission v. U.S. Postal Service, 487 F.2d 1029, 1040 (D.C. Cir. 1973) ("an agency that relies on an 'assessment' to dispense with an impact statement may well run risks not warranted by any countervailing benefit"); Hanly v. Kleindienst, 471 F.2d 823, 836 (2nd Cir. 1973). Moreover, under NEPA and its implementing regulations, we cannot accept the EA's as a substitute for -17- an EIS -- despite the time, effort, and analysis that went into their production -- because an EA and an EIS serve very different purposes. An EA aims simply to identify (and assess the 'significance' of) potential impacts on the environment; it does not balance different kinds of positive and negative environmental effects, one against the other; nor does it weigh negative environmental impacts against a project's other objectives, such as, for example, economic development. This latter balancing job belongs to the officials who decide whether to approve the project; and (where there are 'significant effects') those officials should make the decision in light of an EIS. An EIS helps them make their decision by describing and evaluating the project's likely effects on the environment. The purpose of an EA is simply to help the agencies decide if an EIS is needed. To treat an EA as if it were an EIS woudl confuse these different roles, to the point where neither the agency nor those outside it could be certain that the government fully recognized and took proper account of environmental effects in making a decision with a likely significant impact on the environment. For one thing, those outside the agency have less opportunity to comment on an EA than on an EIS. See 40 C.F.R. 1503.1, 1506.6 (1984); Massachusetts v. Watt, 716 F.2d 946, 951 (1st Cir. 1983) and authorities cited there. -18- For another thing, those inside the agency might pay less attention to environmental effects when described in an EA A than when described In an EIS. At the same time, if we assume The EA's before us concern the likely environmental that the EA's at issue here offer nearly as thorough an analysis effects of building the causeway and the port. Our reading : s would an EIS, the agencies will not find It difficult to of the record indicates that the major environmental bones of omply with the additional procedural EIS requirements that contention have Included the following: NEPA Imposes. (Indeed, at oral argument, counsel for the 1. Clam flats. Building the causeway will eliminate appellees said that the agencies need take only one additional 1.5 to 2 acris of clam flats; construction of the port will step to meet RIS requirements, namely to offer additional eliminate another 1.5 to 2 acres. Maine's DOT, however, will opportunity for public comment.) replace 2.14 acres of this habitat by seeding an area east of For these reasons, we will not treat the EA's before the causeway. And the Corps' permit for the port/causeway us as if they were an EIS or as if they reflected an ultimate project requires that the state of Maine submit a plan for decision to proceed with the project. Relevant decisonmakers additional mitigation before proceeding with the project. may well find that the project's economic good outweighs any 2. Lobsters, scallops, and other marine animals. environmental harm. But, Building the marine terminal will require. dredging and filling Ing -tb*t;the.1pxqjRct @Will -havLe 90 acres now inhabited by lobsters#' scallops, and other marine W-sianiflc-aiit:-,ie-pa-ct-'.bn:theenvirontr, as animals. Thirty-6ve acres of this habitat will be permanently we have said, is whether the record reveals that conclusion to lost; the balance -- including scallop fishing, grounds and be unreasonable, to the point where the decision not to prepare lobster fishing grounds (with up to 500 lobster Pots) -- will an ElS either violates NEPA or (what here comes to the same be dredged in order to create deep water access---to the port, thing) is "arbitrary, capricious, an abuse of aiscretion.* 5 and therefore may be lost only temporarily. Maine's DOT, U.S.C. 706(2)(A). however, noted that many of the lobsters can move elsewhere and the scallop grounds are not very productive.. Moreover, the Corps has conditioned its permit on Maine's preparing a -19- -20- report on the need for (and, if necessary, a plan for) additional 6. Run-off. Several federal environmental agencies and the Corps noted that the frun-off of water contaminated mitigation of these habitat losses. 3. Waterfowl. The appellants and several by, oil, grease, and toxic substances from the marine terminal environmental agencies said the project would adversely affect could pollute water in the harbor. Consequently, the Corps Included in its permit for the project the condition that the certain birds by encroaching on their current habitat. Maine's terminal Include DOT, after consulting with Maine wildlife agencies, concluded facilities capable (of) preventing the that it would not do so because the birds' winter feeding on discharge of sediment grease and oil associated'with storm drainage discharge the island is limited to areas that do not freeze, and the to the satisfaction f the Division Engineer. project will not deprive them of a significant amount of such 7. Tidal exchanae. During each tidal cycle, habitat. approximately 22 million cubic feet of water crosses the gravel 4. Seals. One of the federal environmental agencies bar along which the state intends to build the causeway. The argued that the project would drive seals from the area. Corps has required Maine to Include a 2i-Inch diameter culvert Maine's DOT, however, concluded that the harbor seals are U1 through the causeway to permit some tidal exchange between the I already accustomed to the shipping traffic and would not be two harbors that the causeway will separate. in light of this significantly disturbed. requirement, and the fact that the 22 million cubic feet 0, 5. Upland habitat. The parties agree that the port water represents only 3 percent of the total amount of tidal terminal would eliminate at leasi 40 acres of wooded upland flow in and out of the two harbors, the Corps concluded that habitat which supports several kinds of mammals and birds any impact on tidal exchange would not prove significant. (including foxes, white-tailed deer, Osprey' and Woodcock). 8. Dredging and spoil' disposal. .Con.struction of Maine's DOT and the Corps concluded, however.--.that the loss the port will require the disposal of over 2 llion cubic mi was not significant because the 40 acres represents only 4 yards of dredged material ( called 'spoils@) -_ 1.3 million In percent of the Island's total 'upland habitat'; displaced the initial phases of the project; 750, 000 In the later stages. animals could go elsewhere; and the area has.an abundance of The Fish and wildlife Service feared that Maine's plan to dump such resources. -22- -21- mm =mom=== lack 'significance.' The CEO, howev er, has written: the spoils at a special ocean dump site would destroy a 'benthic mitigation measures may be relied community" - organisms on which fish and other sea. animals upon to make a finding of no significant impact only If they are Imposed by statute feed. The Corps concluded that this possibility was not or regulation, or submitted by an applicant or agency as part of the original environmentally significant because the dredged material would proposal. As, a general rule, the regulations contemplate that agencies cover only 65 acres, the 'communities' could reestablish . . . should not rely on the possibility of mitigation to avoid the EIS themselves, and Maine agreed to consider other ways of disposing requirement. of some of the material. If a proposal appears to have adverse effects which would be significant, and I certain mitigation measures are then developed during the scoping or EA stages, Whether or not these environmental effects, when the existence of such possible mitigation does not obviate the need for an EIS. . * * considered together, do, or do not, show a *significant Impact, (Preparation of an EIS) Is essential to ensure that the final 'decision is based is arguable. We note that the federal agencies, including the on all the relevant factors and that the full NEPA process will result In project's agency sponsors, differ among themselves about the enforceable mitigation measures through significance of some of these effects. The Corps' EA. for the Record of Decision. Forty Most Asked Question supra, 46 Fed. Reg. 18028, 1603B example, criticized Maine DOT's. environmental assessment of 11981) (citations omitted) (emphasis in.original). Regardless, the project, for (in the Corps' vi .ew) it. did 'not adequately were only the above-mentioned impacts at issue, we doubt that address impacts' (A. 378). We also note'ihat certain factual we could say that the IFONSV conclusions of the@ Corps and the matters are in dispute. For example, the environmental agencies Federal Highway Administration were 'arbitrary, capricious, have argued that the Corps' estimate of the number of undersea an abuse of discretion." 5 U.S.C. 5 706(2)(A). acres that will be covered by the dredging spoils (first, 20 - 40 acres, then 65 acres) Is too lowl and, the record contains a Corps memo suggesting that diedged material may cover 194 however, undersea acres, not 65. Finally, we note that the Corps when combined withla more serious omission.by the Corps and evidently believes that promises to mitigate certain the Federal Highway Administration -- [email protected];pnsider-. environmental impacts in the future mean that these impacts -24- -23- adequately the fact that building a port and causeway may lead to the further industrial development of Sears Island, and that further development will significantly effect the environment. The CEQ says that agencies must take account of such "indirect effects," which it defines as those that are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density, or growth rate, and related effects on air and water and other natural systems, including ecosystems. 40 C.F.R. 1508.8 (emphasis added). Of course, agencies need not consider highly speculative or indefinite impacts. See, e.g., Kleppe v. Sierra Clut, 427 U.S. 390, 402 (1976). But, here the 'impacts' seem neither speculative nor indefinite. Whether a particular set of impacts is definite enough to take into account, or too speculative to warrant consideration, reflects several different factors. With what confidence can one say that the impacts are likely to occur? Can one describe them 'now' with sufficient specificity to make their consideration useful? If the decisionmaker does not take them into account 'now,' will the decisionmaker be able to take account of them before the agency is so firmly committed to the project that further environmental knowledge, as a practical matter, will prove irrelevant to the government's -25- decision? See Massachusetts v. Watt, 716 F.2d at 952 - 53. In this case, the record contains clear answers to these questions. And those answers show that the agencies should have taken account of the "secondary impacts." First, the record makes it nearly impossible to doubt that building the causeway and port will lead to further development of Sears Island. Local planners have considered the port, causeway, and industrial park to be components of an integrated plan. The town of Searsport, for example, begins its "Municipal Response Plan" as follows: The 517 acres comprising the southern half of Sears Island have become the focus of considerable attention over the last few years as efforts to develop both a major cargo port and an industrial park have crystallized. This two part development package has emerged in response to identified needs both for cargo port development in Maine and for economic development in the Waldo County area. (Emphasis added). This theme is echoed in several of the EA's prepared for the Sears Island project. Maine DOT's August 1983 EA, for example, projected further industrial development after construction of the cargo port: -26- Development of the cargo terminal will ... act as the principal stimulus to further industrial development on the island istsel. An estimated 350 acres on the island is expected to be made available by the present land owner (Bangor Investment Company [a subsidiary of Bangor & Aroostock Railway]). Central Maine Power already has a lease on an additional 423 acres .... Industtries likely to be attracted to the island include those heavily dependent on port and rail facilities .... Several forest products and food industries are also expected to have facilities on the island, as well as suppliers or paper-making machinery and machinery components. . . . Industrial development, indirectly stimulated by constructing the cargo terminal, will generate increased revenues (for the town) .... The eventual fiscal impact on the town will, of course, depend upon the degree and timing of the expected co-development of the island. (A. 243, 248 (emphasis added).) CF. Citizens for Responsible Area Growth v. Adams, 477 F. Supp. 994, 1001 - 02 (D.N.B. 1979) (comprehensive EIS required where history of project shows that community and various agencies considered the three parts of airport improvement projects as related). Maine DOT says that Searsport has "actively pursued such development for the Island" (A. 354). And it pointed to this development as one of the important factors in its selection of Searsport as the site for the marine terminal: -27- While development in Portland and other sites investigated woujld require less natural hibitat destruction, development at these sites would not stimulate further industrial development to the extent that developing a cargo terminal on Sears Island would. (A. 289.) See Chelsea Neighborhood Associations v. U.S. Postal Service, 516 F.2d 378, 388 (2d Cir. 1975) (construction of new housing was a "selling point" for proposed postal facility, so EIS must consider it); Sierra Club v. Sigler, 695 F.2d 957, 979 (5th Cir. 1983) (bulk cargo activities a "selling point" for oil project, so EIS must consider them); City of Davis v. Coleman, 521 F.2d 661, 676 - 77 (9th Cir. 1975) (EIS must include consideration of "growth-inducing effects" of proposed ` highway construction project, where those effects are the project's "raison d'etre"). Moreover, the record reveals that, after negotiations with town officials, the owner of the lower half of the island has already agreed in principle to accept a four-fold increase in its real estate tax assessment, (from $2,360/acre to $10,000/acre) in exchange for town financing of part of the causeway construction costs -- an increase that provides a powerful incentive to develop the land. Second, the plans for further development are precise enough for an EIS usefully to take account them into account. The record contains, for example, a 35-page "Land Use Plan/Industrial Marketing Study" prepared for the owner of the -28- : outhern half of the Island* and the town's 50-page OMunicipal likely to occur, even if It Is pointless to analyze precise esponse Plan for the Indusirial Development of Sears Island.* details. Third, once Maine completes the causeway and port, These documents provide detailed descriptions of likely further development, including a plot plan of the proposed industrial pressure to develop the rest of the island could well prove park that shows measured lots of 15, 25, and 50 acres, and irreversible. There Is some indication in the record that if locations for railroad and secondary road loops (see Appendix) . the Sears Island terminal is built, there will-probably not i be another major.port facility.built in Maine for a long tire, The reports analyze the physical characteristics of the lower half of the island, discuss the feasibility of construction and whatever new shipping traffic and industria I develop=ent at various sites on the island, and outline developm ent options; is created by -the project will be funneled Into the Searport they also discuss the likely impact of Industrial development area. See 4*0 C.F.R. 1508.27 (b) (6) (in deciding whether an ]EIS on employment, housing, medical services, municipal services, is necessary, agency must consider the *degree to which an the environment, and so forth. Actual further development may action may establish a precedent for future actions with not follow the precise course that these documents suggest, significant effects') (emphasis added); 42 U.S.C_* 5 actical methods for dealing with but the CEO has developed pr 4332(2)(C)(v) (EIS must consider 'any irrvKers-Ule d such "secondary Impacts.' It state .a: Irretrievable commitments of resources which would be involved ITIbe agency. is not required to engage in in the proposed action should it be implemented"). Even if speculation . . . . But . . . It will often be possible to consider likely purchasers federal authorities were to have an opportunity to cznsider (of land) and the development trends In that area or similar areas in recent years the environmental effects of the industrial 'park at a later . The agency has the responsibility ;ake an informed judgment, and to time, that later consideration would be unlih6i'y to"bffer the estimate future impacts on that basis The agency cannot ignore these declsionmaker a meaningful choice about whethef-',.'@o` proceed. Lniertain I _11 t e decisions. See Massachusetts v. Watt, 716 F.2d at 952 .5i (describing Forty Most Asked Questions, supra, 46 Fed. Reg. at 18031 each Step in proposed offshore leasing program as 'a link in (emphasis added). The 'land use' and 'response, plans are a chain of bureaucratic commitment that- will beco=,e detailed enough for an EIS to describe the type of development progressively harder to undo the longer it continues'). -30- The appellees point to KlePPe V. Sierra Club 427 that each of the EA@s discussed this development to some extent. U.S. 390 at 402, where the Supreme Court wrote: Thus. In fairness to the agencies, we should not rest sim;7ly upon the fact that the Maine DOT says that it did not take Where no plan exists, any attempt full account of the industrial development; rather* we 1-:st to produce an Impact statement would be little more than . . . (an) estimatell of go on to decide whether the consideration of Industrial potential development and attendant environmental consequences. There would development that the EA'; actually made was adequate be no factual predicate for the production of an environmental impact statement of could the agencies reasonably conclude that the project the type envisioned by NEPA. (including the likely further development) would have no But Kleppe is not contrary to the CEQ or t .o our analysis here. significant impact on the environment? In Kleppe, federal agencies had prepared EIS's for individual mining operations and for a national mining program; appellants We do not see how the agencies could reach such a had argued that certain federal agencies should have prepared co.nclusion given the town's report and other reco rd items that an additional, separate EIS for regional mining activity in show that industrial development of the Island would add (even under the town's 160-ac re, moderate development, scenario) the Northern Great Plains. The Court pointed out that there 2,150 new jobs in a town with a population of under 2,5DO; OD was *no proposal for a regional plan or program of development. * C) that show increased traffic on Route I (the town's principal 1 427 U.S. at 404 (emphasis added). Thus, It saw a separate EIS artery) by 50 - 71 percent; that show additional lost scallop as impractical and unnecessary. Here, plans And a proposal be3s and clan- flats, more soil erosion and aesthetic harm, a for the industrial park exist; we are not considering an disposal and water supply, an add need for additional waste ec additional EIS for the industrial park, but whether Its likely threat to water quality. and (under the town's,300-acre, 'full construction should be taken Into account in an EIS for the development' scenario) a loss of at least 23%percent of the Sears Island project. And', we conclude-that taking this aspect island's upland animal habitat. of the project Into account, unlike the Kleppe EIS, is both we have -read the agency EA's, searching for practical and neces@_ary. ion that these impacts info.rmation that might allow a conclus found are not significant. But we have not We find the Although Maine DOT says that likely industrial development fell outside the scope of its EA, the record shows -32- -31- local, state and Federal regulations to prevent complete e _ns offered by the agencies as to why theseJin .@ @ianatio -pacts devastation of the island" (A. 413). Of course, the drafters are not significant unpersuasive. First, some of the*EA's of NEPA had more in mind than avoiding ocomplete devastation." suggest that secondary impacts might be 'mitigated.' But, as The Corps also points to the fact that Searsport has itself we noted Above, mitigation cannot, by itself, render impacts toned the Island for industrial use -- a fact that it finds to ,insignificant' unless the mitigation measures are *iTRqAe.d be 'evidence supporting a finding of no significant impact., by statute or regulation, or submitted - as part of the Preservation Coalition Inc. v. Pierce, 667 F.2d $51, 861 (9th original proposal. 46 red. Reg. at 16038. Here, t .he agencies Cir. 1982). The cited case, however, rested on a finding that have not said what mitigation measures they have In mind with the zoning there (in Pierce) was consistent with the existing respect to the industrial.park. pattern of (urban) land use -- a use that the proposed urban Second, some of the EA'S point to the economic renewal project would not have altered. The project before benefits of industrial development. The Corps' EA, for example, us, however, would radically alter existing land use. Sce 32 says that C.F.R. 651.28(e) (1984) (requiring Corps to prepare EIS for 00 The area is economically depressed and the projects "normally requiring EISs, " such as 'actions which may benefits that would accrue from development of the island would outweigh lead to significant change in land use") (emphasis added); 23 any loss to wildlife or habitat. C.F.R. 5 771.115(a) (3) (1984) (similar requirement for Federal (A. 413.) This type of argument, however., is not relevant to Highway Administration). the question of the existence of significant environmental Fourth, the Corps' EA dismisses the impact on 'upland effects. It says that adverse effects (even if significant) habitat' as insignificant on the ground that there-it adequate are warranted -- a matter that must, under NEPA, be decided ------- el ewhere in the area. The force of this- t@a 6fta t s ::a ume n t o -an EIS. s e CEQ regulations make clear, '[a) 'depends upon the meaning of the word 'area.* if the Corps significant effect may exist even if the Federal -agency believes means 'elsewhere on Sears Island," its conclusion Is weak. that on balance the effect will be beneficial." 40 C.F.R. The EA's Indicate tha t 'full development' of the southern half of the island will increase the amount of upland habitat 'taken' Third, the Corps' points to various land use regulations -as a safeguard, noting that "ftlhere is. adequate -34- -33- M@ rest not so much on their belief that the Industrial park would not affect the environment, as upon their belief that they from 4 percent of the island to 23 percent. Since this latter need not take account of the Industrial park's effects, And, figure is ba .sed on a calculation that counts as ;taken' only as we have indicated, we do not believe that NEPA peritits the the land which is actually cleared for construction of buildings agencies here to ignore these- impacts. See Scientists, and parking lots, the percentage of supland habitat' that the Institute for Public Information v. AEC, 481 F.2d 1079, 1087 development will render unsuitable for wildlife would likely (D.C. Cir. 1973) (EIS required for overall project where be far higher. if the Corps means to include in the relevant Individual parts of d on the coast of Maine, its conclusion is project are related. logically or area" other lan geographically); CitY of Rochester v. U.S. Postal Service, 541 more reasonable. Yet we doubt that the Corps can include so F-2d 967, 972 (2d Cir. .1976) (*To permit noncomprehensive wide an area in its calculation. The CEQ1s regulations state consideration of a Project divisible into smaller parts, each that 'in the case of a site-specific action, significance tof of which taken alone does not have a significant impact but environmental impacts) would usually depend upon the effects which taken as a whole has cumulative significant Impact, woz2d in the locale rather than in the world as a whole.' 40 C.F.R. provide a clear loophole to NEPA.1); Susquehana Valley Alliance S 1508.27(a) (1984) (emphasis added). Here, the nature of the v. Three Mile Island 619 F.2d 231, 240 Od Cir. 1980) (same), action, and the geographical character of Sears Island, suggest cert. denitd_, 449 U.S. 1096 (1981); West Chica3o v. U.S. K@;Clezr that the appropriate *locale" is Sears Island and its immediate Regulatory Commission, 701 F.2d 632 (7tb Cir. 19B3) fillecal surroundings. Fifth, the Corps, EA concludes that because the PieCemealing" or "segffentati,on- allow, agency to avoid ondary development being considered is . "light dry requirements of the Act); Alpine Lakes Protection Soci ety v. sec Schlapfer, 516 F-2d 1089, 109c) Oth Cir. 197s) (per curiam) industrial,' "there should be no significant air or-wajter-.----- (such segmentation merits *close scrutiny to prevent the quality impacts from this type of industrial-,4eration" (A. Policies of NEPA from being nibbled awayO); see generally W. 412). This conclusion, however, is not supported or explained, Rodgers, Environmental Law SS 7.9, -at 797 - 92 (1977) ('NEPA nor does the record indicate why this is so. discourages the cramped look that segmentation represents.'). As we read the record, the relevant federal agencies' conclusions that the project would have no significant impact -36- -35- In sum, given the likely secondary effects of the Sears Island project and the other effects previously described, the record in this case connot support a FONSI, and therefore an EIS must be prepared. We reach this conclusion not because preparation of an EIS is merely a technical requirement which, under NEPA and its implementing regulations, must here enforce. Rather this requirement reflects NEPA's underlying purpose in requiring agencies to determine and, ss environmental effedts in a systematic way -- namely, having decisionmakers focus on these effects when they make, major decisions. That is to say, the requirement flows not only from the letter, but also from the spirit, of NEPA. The decision of the district court is vacated and the case remanded for proceedings consistent with this opinion. -37- v k@ C. sr., tovi #4 bar f, K.444, 'Lonp Cove',,., of f CARGO PIER 00 PROJECT AREA V i -. tf INDUSMAL PARK SITE ',7 1000 0 1000 FEIT [From "A Municipal Response Plan for the t of Sears Island (June 1983N 'b N Industrial Developmen C L Adm. Offj,,, U.S. Courts - Blanchard Pr I I I I I I I I I I I I I 1. 1 I I I I" 1118111111111111 3 6668 14102 6577 I-