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












                   Comparative Assessment of State Laws
                     Protecting the Marine Environment
                            of the Gulf of Maine










                                   for the

                Gulf of Maine Council on the Marine Environment









                               prepared by the

                             Marine Law Institute
                       University of Maine School of Law
KF                            246 Deering Avenue
5627                         Portland, ME  04102
.Z95                             April 26, 1991
C66
















  This report was prepared by the
Marine Law institute under a con-
tract with the Maine State Plan-
ning Office (Contract No. 07B GT
SS910461), funded through NOAA's
office  of  Ocean  and  Coastal
Resource Management under a Coast-
al Zone Management Act interstate
grant to Maine, New Hampshire and
Massachusetts.   The contract was
supervised by John Catena, Senior
Planner, State Planning Office and
Alison Rieser, Director and Barba-I
ra vestal, Associate Director of
the Marine Law Institute, Univer-
sity of Maine School of Law.3

  This report was written by
Timothy Eichenberg, Staff Attor-
ney, Marine Law Institute.   Re-I
search assistance was provided by
Gail Peabody, Mary Kellett, and
Nancy Drapeau of the University of
Maine School of Law. Administra-
tive support and assistance was
provided by Beverly Bayley-Smith,
Administrative Manager, Marine LawI
Institute. Special assistance in
gathering the information for this
Report was provided by Pat Hughes,I
Massachusetts Coastal Zone Manage-
ment office, and David Hartman,
Coastal Program Manager, New Hamp-

shire Office of State Planning.







o~                                               U. S. DEPARTkdFN?ï¿½F $'ï¿½MtkERCE NOAA
                                        COASTAL SEHvIC~ ,NTE

                                        CHAR TLES     SC n       A A
                       ~  TABLE  OF  CONTENTS 2234 SOUTH HOESON AVENUE
            ~.~,~   ~ ~ ~   ~ ~~~~~~~         CHARL ESTON~ SC '


FEB zlq
    Executive Summary .....................iv

    I. Introduction ..................... I

    II. The Federal Framework .................                     3

        Coastal Development and Land Uses ...........               3
        Ocean Dumping .....................                        4
        Point Source Pollution ................                     5
        Nonpoint Source Pollution ...............                  6
        Ports and Navigation .................                     6
        Oil and Hazardous Wastes. ............. 7
        Offshore Oil and Gas Development ...........               8
        Wetlands and Sand Dune Protection ...........              9
        Marine Sanctuaries and Estuarine Reserves ....... 10
        Wildlife Protection .................. 11
        Marine Research .................... 12

    III. Comparative Assessment of State Laws ......... 13

        A. Regulated Activities ............... 13

            1. Development Controls ............. 13

                 Planning and Zoning Controls ......... 13
                 State Coastal Management Programs .... 16
                 Coastal Facility Site Review ........ 17
                 Environmental Impact Assessment ....... 18

            2. Water Quality Controls ............ 18

                 Ocean Dumping ............... 18
                 Discharge from Vessels ........... 19
                 Point Source Pollution ...... ..... 20
                 Nonpoint Source Pollution .......... 23

            3. Hazardous Wastes ......... 25
            4. Oil Spill Prevention .26
            5.  Offshore Oil/Gas/Mineral Development .... 28

        B. Protected Areas ................. 30

            1.  Coastal Wetlands and Sand Dune Protection   .   30
            2. Tidelands/Submerged Lands Management .      .... 33
            3. Marine Sanctuaries .............. 37
            4. Critical Areas ............... 37
            5. Coastal Wildlife Protection ......... 39
            6.  Coastal Acquisition and Recreation ...... 40


                            property ofT CC Library








IV.  Identification of Contrasting Approaches ..               . . ....443

     A. Common Approaches.                                     ................44

     B. Divergent Approaches.                                  ..............44

           Statewide Planning and Zoning Controls.              .....45
           Regional and State Commissions.                       .........46 I
           Coastal Policy Implementation.                       .........46
           State Site Review.                                   ...............47
           Environmental Impact Assessment.                      ........47I
           Nonpoint Source Pollution.                          ...........48
           Oil Spill Containment.                               .............48
           offshore Mining.                                      ................48I
           Wetlands Regulation.                                 ..............49
           Coastal Erosion.                                    ................50
           Tidelands and Submerged Lands Leasing.               .....50
           Ocean Sanctuaries.                                    ...........50I
           Endangered Species and Habitat Prot'ectlion    .  ...51

     C. New Approaches.            ..                          ...............51

           Centralized Coastal Zone Management.                 ......51
           Ocean Resource Plans.                                ..............52
           Outstanding Resource Waters.                         ..........53
V. Recommendations.                                           ..................55

VI. Appendices ..                                              ....................62

     A. Personal Communications.                               ............63

     B. List of Federal Laws.                                 ...............65

     C. List of Massachusetts Laws.                            .............67

     D. List of Maine Laws.                                   .................70

     E. List of New Hampshire.                    .I..............7

     F.  Summaries and Abstracts of State Laws.                . ......763

           Massachusetts
           Maine
           New Hampshire3









                            EXECUTIVE SUMMARY


             This Report to the Gulf of Maine Council on the Marine
        Environment provides an overview and background on existing state
I     ~and federal laws and programs affecting the coastal and marine
        environment of the Gulf of Maine. It is intended to assist the
        Council in evaluating the existing legal framework relating to
        the Gulf's natural resources to identify areas of similarity and
        differences among jurisdictions bordering the Gulf. The Report
       briefly discusses the federal regulatory framework and how it
        affects state laws; it compares state laws and programs; it
        contrasts different and unique state approaches; and it suggests
        options for uniform and cooperative approaches to regulating and
        protecting     tecoastal and marine resources of the Gulf of Maine.
        For many of these options additional research is called for,
        similar to that prepared for the Council on "Habitat Mitigation
        Efforts in the Gulf of Maine." (Kurland, 1991)

 I          ~~~Federal laws and programs affect uses within state and
        federal waters, and the manner in which states may regulate Gulf
        of Maine resources. The Coastal Zone Management Act, for exam-
        ple, provides funds for the creation of state coastal management
       programs, and the National Environmental Policy Act requires that
       major federal actions within the coastal zone and elsewhere
        receive proper environmental review. The Ocean Dumping Act
3     ~~constrains the kinds of waste disposal activities that may occur
       within both state and federal waters, and the Clean Water Act has
        a major influence on coastal and ocean water quality, point and
       nonpoint sources of pollution, and the regulation of wetlands.
        The new Oil Spill Pollution Act of 1990 will provide uniform
       policies on oil spill contingency planning, liability and finan-
        cial responsibility requirements. Federal marine sanctuary and
I     ~~estuarine reserve provisions provide for the creation of protect-
        ed areas within the Gulf. And finally, significant protections
        for wildlife are established under the Endangered Species Act and
        the Marine Mammal Protection Act.

            The Report contains a comparative assessment of the laws and
        programs of the States of Maine, Massachusetts and New Hampshire
1     ~~and highlights a number of similarities and differences among
        state approaches. Different state approaches, as depicted in
       Figure I (page 45), are summarized below.

            With respect to land use controls, Maine is the only Gulf
       state that requires local governments to prepare comprehensive
        plans and shoreland zoning ordinances that meet state standards.
U     ~~Maine and Massachusetts have also created state and regional
       commissions with regulatory and land use planning authority
       within limited areas of the coast. Maine and New Hampshire have
I     ~~established state regulatory authority over large-scale develop-
       ment, while Massachusetts has a special environmental impact








reporting requirement.  All three states have adopted coastalI
management programs under the Coastal Zone Management Act.

    Each state has also adopted clean water laws that classify3
marine and estuarine waters and establish state licensing stan-
dards for sewage treatment plants and point source discharges.
They also have enacted comprehensive oil spill and hazardous3
waste laws, and nonpoint source management plans. However, only
Massachusetts has created ocean sanctuaries within which activi-
ties such as offshore mining, offshore oil and gas exploration
and development, and ocean incineration, are prohibited.
    Maine, Massachusetts and New Hampshire have each adopted
wetlands laws, but there are substantial variations among state
wetland regulations. Although New Hampshire and Massachusetts
provide for state regulation of freshwater wetlands under 10
acres, Maine does not. Wetland buffers vary among the states, as
do the application of "no net loss" provisions.  Development onI
coastal dunes and bluffs, and the construction of sea walls, are
generally restricted, although Maine has adopted the most rigor-
ous controls against such development.

     It is noteworthy that in New Hampshire the public owns
tidelands up to the high water line, while in Massachusetts and
Maine public ownership extends only to the low water mark.I
Nevertheless, Massachusetts requires extensive public benefits
for issuing tidelands and submerged lands leases, even on filled
tidelands. Massachusetts also provides for substantial protec-
tion of water dependent uses and requires that any change in use
on public tidelands be relicensed.

    With respect to other uses on publicly-owned tidelands andI
submerged lands, Massachusetts has also established a special
state commission for regulating the exploration and salvage of
underwater archeological artifacts.  Maine and New Hampshire haveI
adopted extensive environmental controls for leasing such areas
for finfish aquacuiture.

     Each Gulf state designates critical areas within its coastalI
zone, and establishes strategies to manage, protect, and acquire
such areas. However, the Massachusetts program imposes addition-
al performance standards for development proposed within criticalI
areas. Each state has also enacted its own endangered species
law, although there are variations among the species designated
and habitat protection provisions. Finally, it is noted that
although each state has a program to acquire coastal areas forI
recreation, open space and habitat preservation, funding has been
or is nearly exhausted.5




                              iv









           Based upon these findings, the following approaches are
      recommended to eliminate gaps and inconsistencies that leave
      unprotected vital Gulf resources:

           1.  Regulatory, land use planning and zoning controls
 I            ~~~~that reflect state-wide coastal policies;

1          ~~~2.   Special site review for large-scale development;

           3.   Uniform ocean dumping and mining standards;

3          ~~~4.  Uniform marine monitoring programs;

           5.   Reduction of pollution from vessels;

1          ~~~6.   Uniform septic standards;

           7.   Enforceable nonpoint source pollution strategies;

I        ~~~8.   "No net loss" wetlands policies and other wetland
                preservation strategies;

1          ~~~9.   Cooperative measures for regulating and cleaning
                up oil spills;

3          ~~~10.  Restricting the construction of sea walls and develop-
                ment within and adjacent to sand dunes and coastal
                bluffs and taking measures to anticipate the effects of
 3             ~~~~sea level rise;

           II. Providing public benefits and protecting water
                dependent uses on state tidelands and submerged
                 lands;
           12. Ocean sanctuaries and other mechanisms to protect
 3              ~~~~sensitive ocean and coastal areas and resources;

           13. Protecting underwater archeological resources;

3          ~~~14.  Cooperative and uniform approaches to managing and
                protecting endangered species and their habitats;
                 and

1          ~~~15.  Cooperative approaches for coastal acquisition
                programs.


           These recommendations are described in greater detail in
      Section V (Pages 55-61).



      *                              ~~~~~~~~~~~v









     I                         I~~~~~~. INTRODUCTION


 3          ~~~This Report inventories and assesses the major laws regulat-
       ing and protecting the coastal and marine resources of the Gulf
       of Maine. It is intended as a background document for the Gulf
       of Maine Council on the Marine Environment to facilitate imple-
       mentation of the Gulf of Maine Initiative and Action Plan. The
       evaluation of existing state and federal laws, and the identifi-
U     ~cation of similarities and differences in regional approaches, is
       a necessary preliminary step to developing a comprehensive,
       coordinated, transboundary approach for the sustained use and
3 ~~protection of marine and coastal resources.

            The Report summarizes the major federal laws and state
       regulatory programs of Massachusetts, Maine and New Hampshire
I     ~~that affect the marine and coastal environment of the Gulf of
       Maine. For purposes of this analysis, state laws and programs
       are categorized into "regulated activities" and "protected
       areas.*"

            Laws affecting regulated activities include:

  I              ~~ ~~- development controls (planning, zoning and
                     subdivision laws; state coastal management
                     programs; coastal site review procedures; and
                     environmental impact review requirements);
                -    water quality controls (ocean dumping; vessel
                     discharge laws; point source and nonpoint
                     source pollution programs);
  3~~~~~ -hazardous waste laws;

                -    oil spill prevention laws; and

  3~~~~~ -offshore oil and mineral development laws.

            Laws affecting protected areas include:

  3~~~~~ -coastal wetland and sand dune protection;

                -    tidelands and submerged lands management;

  I~~~~~ -marine sanctuaries;

  5~~~~~ -critical areas;

                -    coastal wildlife protection; and

  3~~~~~ -coastal acquisition and recreation.







    The Report compares the laws affecting these issues andI
identifies contrasting approaches utilized within each state.
Each state law relevant to the marine resources of the Gulf of
Maine is listed, summarized and abstracted in the Appendix forI
reference and additional background. The Report also discussesa
number of important federal laws and the federal context in which
the state programs operate. The Report then identifies areas in
which consistent approaches would prove beneficial and makesI
recommendations to assist the Gulf of Maine Council in consider-
ing cooperative approaches to regulating and protecting the
coastal and marine resources of the Gulf of Maine.
    The information for this Report was gathered from reviewing
state and federal statutes and regulations and interviewing
government officials through January 1991.  A number of theseI
laws are undergoing revision. The Council should verify that the
most current versions of these laws are reviewed before making
final recommendations.  The Report is one-half of a comparativeI
study of U.S. and Canadian laws to consider possible cooperative
approaches to managing the common and interdependent coastal and
marine resources of the Gulf of Maine. When research on the
Canadian system is completed, additional federal analyses andI
recommendations will be made.












                                          2~~~~~~~








    I                   H~~~1. THE FEDERAL FRAMEWORK


            This Report focuses on state laws and programs. However,
       the federal framework under which state laws operate is also
       significant not only within federal waters (generally 3-200 miles
       offshore), but also within state waters (0-3 miles offshore) and
       the coastal zone.' Federal laws affect state programs in a
       number of ways: they may preempt state regulation; they may
U     ~mandate state action; they may provide incentives for state
       action; or they may provide minimum standards. Section III of
       this Report, the Comparative Assessment of State Laws, makes
I     ~~reference to some of these federal laws as they relate to specif-
       ic state programs. The following discussion briefly reviews the
       federal legal context in which the states regulate and protect
       Gulf resources (a complete list of these federal laws is con-
       tained in Appendix B).
       Coastal Development and Land Uses

            There are two significant federal laws that affect coastal
       development and land uses. The Coastal Zone Management Act2
       (CZMA) provides substantial incentives for states to adopt
       federally-approved coastal management programs. State coastal
       programs must identify permissible land uses, establish priori-
       ties of uses, designate areas of particular concern, protect and
U     ~~provide access to public beaches and other important coastal
       areas, and control coastal erosion. Recent amendments to the
       CZMA also require states to prepare Coastal Nonpoint Source
       Pollution Programs that meet minimum federal standards. (The
       requirements for these programs are discussed further below.)

            States with federally-approved coastal management programs
       are eligible for federal implementation grants and other federal
       moneys, and are also entitled to review federal, federally-
       funded, and federally-permitted activities that affect their
I     ~~coastal zone for consistency with state program policies.  This
       "federal consistency authority" provides states with a signifi-



             'The Submerged Lands Act grants to states ownership of
       submerged lands and waters out to 3 miles offshore. 33 USC 1301-
       1315. Although the U.S. territorial sea is currently 12 miles,
       the area beyond 3 miles to the limits of the Exclusive Economic
       Zone (200 miles) is subject to federal jurisdiction and is
       therefore referred to as "federal waters." Presidential Procla-
       mation No. 5928, 45 Fed. Reg. 777 (1989).
            2 16 USC 1451-1464.


       1                              ~~~~~~~~~~~~~~~~3








cant mechanism to influence federal projects that may affect the 
Gulf of Maine.'

    The National Environmental Policy Act4 (NEPA) requires that 
federal agencies prepare detailed environmental impact statements
(EISs) for federal and federally-permitted activities that have a
significant effect on the environment.  EISs must outline theU
environmental impacts of a proposed action, its adverse environ-
mental impacts, and alternatives. EISs may be prepared for a
number of federal actions affecting Gulf of Maine resources
including, offshore oil and gas leasing and development, oceanI
dumping activities, federal highway projects, and federally-
approved dredge and fill projects, among others.3

Ocean Dumping

    Under the Ocean Dumping Act,5 the U.S. Environmental Pro-I
tection Agency (EPA) issues permits and designates sites for the
dumping of all material into all ocean waters, within and outside
the U.S. territorial sea. Permits for the dumping of dredged
material at specified sites are issued by the Army Corps ofI

    The Act requires that ocean dumping, "not unreasonably3
degrade or endanger human health, welfare, or amenities, or the
marine environment." It authorizes the EPA to consider the
following criteria when evaluating ocean dumping permits: the
need for the proposed dumping; the effect on human health and       
welfare including economic, esthetic and recreational values; the
effect on fisheries resources, wildlife, shorelines and beaches;
the effect on the marine ecosystem; the persistent effects andI
concentrations of dumping; land-based alternatives including
recycling; the effect on alternative uses of the ocean such as
scientific study, fishing and other resource exploitation; and
appropriate locations beyond the Continental Shelf. The Act
prohibits the ocean dumping of radioactive wastes and establishes
a schedule for phasing out the dumping of industrial wastes and
sewage sludge by 1992.7

    3 16 USC 1456.1

    4 42 USC 4321-4370.

    5 The Marine Protection, Research and Sanctuaries Act of
1972, 33 USC 1401-1445.

      el33 USC 1413 (ocean Dumping Act) and 33 USC 1344 (Section1
404 of the Clean Water Act).

    7 33 USC 1412 and 1414(b).3

                              4









Point Source Pollution

     Wastewater discharges from industrial and municipal facili-
ties are regulated by the EPA under section 402 the Clean Water
Act (CWA).8 The EPA issues National Pollutant Discharge Elimi-
nation System (NPDES) permits for point source discharges and
delegates the NPDES program to states that meet minimum federal
discharge standards. States must also certify that proposed
NPDES permits and other federal permits meet state water quality
standards.9  EPA also prepares specific ocean discharge crite-
ria for point source discharges into ocean waters."ï¿½

     The EPA assists in the construction and licensing of public-
ly-owned sewage treatment plants (POTWs), and has established
pretreatment standards for sources discharging into POTWs.1
Waivers for secondary treatment for POTWs with ocean outfalls are
permitted under certain circumstances.'2 Although permits are
not currently required for stormwater discharges, after October
1992, all separate municipal storm sewer systems must also have
discharge permits.'3

     The EPA has also established an anti-degradation policy to
maintain the quality of the nation's water pursuant to which
states must implement water quality classification systems and
standards.'4 The anti-degradation policy requires that existing
uses of all waters and the level of water quality necessary to
protect existing uses be maintained; that water quality exceeding
that necessary to support fish, wildlife and recreation be
maintained unless lower water quality is necessary to accommodate
important economic or social development; and that high quality
waters constituting an outstanding national resource be main-
tained and protected. The Gulf states of Maine, Massachusetts



       33 USC 1342.

       33 USC 1341.

        Section 403 of the Clean Water Act, 33 USC 1343, creates
special requirements for discharges into the territorial sea,
contiguous zone, or ocean water lying seaward of the baseline
from which the territorial sea is measured. 33 USC 1402(b).

     3. 33 USC 1317.

     12 33 USC 1311(h).

     13 33 USC 1342(p)(2).

        40 CFR 131.12.


1                              ~~~~~~~~~~~~~~~5








and New Hampshire have each adopted water classification systems
that incorporate the EPA's anti-degradation policy.

Nonpoint Source Pollution

     Pollution from nonpoint sources generally falls under state
and local government regulation. However, section 319 of the
Clean Water Act'5 requires states to prepare Non-Point Source
(NPS) Assessment Reports and Management Programs to identify
sources of NPS pollution, water bodies that are unable to meet
applicable water quality standards without NPS pollution con-
trols, and best management practices to control NPS pollution.
Maine, New Hampshire and Massachusetts each have approved NPS
Management Plans.

    As noted earlier, the CZMA now also requires that state
coastal management programs contain Coastal Nonpoint Source
Pollution Programs that coordinate state and local water quality
plans developed pursuant to the Clean Water Act. Coastal NPS
programs must identify land uses that contribute to coastal water
pollution, identify critical coastal areas that will be subject
to management measures, implement management measures necessary
to maintain applicable water quality standards, provide technical
assistance to local governments, allow for public participation,
improve coordination among state and local agencies, and, if
necessary, modify coastal boundaries to implement recommenda-
tions.'6

Ports and Navigation

     The Port and Tanker Safety Act'7 gives regulatory authority
to the U.S. Coast Guard over navigation and safety. The Coast
Guard is authorized to protect navigable waters and resources by
establishing procedures for handling oil and hazardous substanc-
es, prescribing minimum safety equipment, establishing waterfront
safety zones in navigable waters, controlling vessel traffic, and
establishing vessel traffic routing schemes. The Act allows
states to apply more stringent safety standards with respect to
the safety of structures such as wharfs, pipelines and oil
platforms.

     The U.S. has also enacted laws implementing Annexes I, II,
and V of the MARPOL Protocol of 1978, the International Conven-


     3s 33 USC 1329.
     36 Section 6217 of the 1990 Amendments to the Coastal Zone
Management Act, 16 USC 1458(a)-(h).

     'v 33 USC 1221-1236.

                                6









        tion f or the Prevention of Pollution from Ships.18 The laws
        require waste management plans for all manned oceangoing ships 40
I     ~~feet or longer and ail manned fixed or floating platforms, and
       create civil and criminal penalties for dumping plastics and non-
        plastic garbage from vessels within the 200-mile exclusive
        economic zone of the U.S. All U.S. ports and terminals, includ-

        ing private commercial fishing facilities and recreational


        Oil and Hazardous Wastes

 I          ~~~Section 311 of the Clean Water Act prohibits the discharge
        of oil or hazardous substances into navigable waters and adjoin-
        ing waters."9 in addition, Congress recently passed the Oil
U     ~~Pollution Act (OPA) of 199020 which establishes new federal
        financial responsibility requirements for tankers carrying oil,
       establishes liability standards for oil spills, creates a federal
        oil spill and liability fund to pay for removal costs and uncom-
       pensated damages, and federalizes spills through a new National
        Planing and Response System."'

 3          ~~~The OPA creates a uniform federal system of strict liability
        and compensation for all removal costs and damages, including
       harm to natural resources, caused by oil spills from vessels or
        facilities. It requires that nearly all newly-built tank vessels
       have double hulls when operating in U.S. waters. Although the
        new federal law provides some limits to liability, it does not
       preempt state unlimited liability laws or other state oil spill
       provisions. In addition, the Federal Oil Spill Liability Trust

  I          '~~~ 33 Usc 1901-1912.

              '~33 Usc 1321.
              20P.L. 101-380, 104 Stat. 484 (1990).

             21 Section 311 of the Clean Water Act created a National
        Contingency Plan and National Response Team to respond to and
       plan for oil Spills. 33 Usc 1321. However, this process was
        deemed inadequate by Congress after the EXXON VALDEZ spill and
        was substantially strengthened through enactment of the OPA. The
        new National Planning and Response System coordinates private and
       public responses to a spill by providing for a National Response
       Unit, Coast Guard District Response Groups in each of the ten
I     ~~Coast Guard Districts, Area Committees to prepare Area Contingen-
       cy Plans to assure the removal of worst case spills, and Tank
       Vessel and Facility Response Plans reviewed by the federal
I     ~~government.  Ail vessels and facilities must have approved
       Response Plans within two and a half years.

        I                               ~~~~~~~~~~~~~~~7









Fund is available to pay for specified oil-spill related costs if
the limits of federal liability are met or if spiller can not be
identified."2 

    The U.S. and Canada have prepared a Joint Marine Contingency
Plan, updated in 1989, to provide a framework for cooperation in
responding to pollution incidents that pose a significant threatI
to the coastal areas of both countries in the Gulf of Maine. The
Plan is implemented by the U.S. and Canadian Coast Guard and
drills simulating a collision of f the George's Bank were conduct-
ed in 1990.23
    In addition, under the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA),24 any person in chargeI
of a vessel or offshore facility must report the discharge of any
hazardous substance to the National Response Center established
under the Clean Water Act. The Act authorizes the President to
remove hazardous substances or pollutants, or take other remedial
actions to protect the environment, consistent with the National
Contingency Plan. State governments must be consulted and must
assist in any remedial actions taken by the President.  CERCLAI
also creates a Hazardous Substance Superfund to finance cleanup
and remedial action by government where responsible parties can
not be found.3

Offshore Oil and Gas Development

    The leasing, exploration and development of federal watersI
(beyond 3 miles) for offshore oil and gas, is conducted by the
U.S. Department of the Interior under the outer Continental Shelf
Lands Act (OCSLA).25 The timing and location of federal lease
sales must, to the maximum extent practicable, "obtain a proper
balance between the potential for environmental damage, the
potential for the discovery of oil and gas, and the potential for
adverse impacts on the coastal zone." The Act provides for state
consultation with respect to federal lease sales and plans of
development. State recommendations must be accepted if the
Secretary of the Interior determines that they provide a "reason-

    22 26 USC 9509. The Fund is capitalized primarily throughU
a 5-cent per barrel of oil federal tax and penalties assessed for
violations of the OPA, and has a cap of $1 billion.3
    23 "Report of the Commission to Study Maine's Oil Spill
Cleanup Preparedness," Office of Policy and Legal Analysis,
November 1990.
    24 42 USC 9601-9675.

    25 43 USC 1331-1356, 1801-1866.3

                              8








       able balance between the national interest and the well-being of
       the citizens of the affected state." Offshore oil and gas
I    ~leasing and development must also be consistent with the enforce-
       able policies of state coastal management programs under the
       CZMA. 26

       Wetlands and Sand Dune Protection

            Federal regulation of activities affecting wetlands is
I     ~~carried out by the Army Corps of Engineers under section 404 of
       the Clean Water Act."7 A Corps permit is required for the dis-
       charge of dredge and fill material into tidal waters and coastal
I     ~~and freshwater wetlands. The EPA retains veto authority over the
       issuance of Corps' discharge permits and also prepares wetland
       permitting guidelines.2" The Corps is also required to consult
       with the U.S. Fish and Wildlife Service and the National Marine
       Fisheries Service to protect and conserve wildlife resources.2"
            The standards for issuing dredge and fill permits are quite
I     ~~broad and call for a "public interest review" that balances the
       "benefits which reasonably may be expected to accrue from the
       proposal . . . against its reasonably foreseeable detriments.""0


            265 16 USC 1456(c).

            27 33 USC 1344. The Rivers and Harbors Act of 1899 also
       delegates regulatory authority to the Corps over navigable waters
       to prevent obstructions to navigation and license structures in
       or over navigable waters. 33 USC 401-403.
              2840 CFR Part 230. The Corps and EPA also entered into a
I     ~~Memorandum of Agreement in 1990 that sets forth mitigation
       measures to avoid, minimize and compensate wetland losses. It
       notes that while mitigation measures in individual permit deci-
       sions may not always achieve the goal of "no net loss" of
       wetlands functions and values, an overall goal of "no net loss"
       of wetlands should be maintained.

 3          ~~~29 Fish and Wildlife Coordination Act, 16 USC 661-666(c).

            30 33 CFR 320.4(a). The regulations state that all rele-
       vant factors should be considered including cumulative effects,
       conservation, economics, aesthetics, general environmental
       concerns, floodplain values, land use, navigation, shore erosion
       and accretion, recreation, water supply and conservation, water
       quality, energy needs, safety, food and fiber production, mineral
       needs, considerations of property ownership and, in general, the
       needs and welfare of the people. A comprehensive analysis of
       state and federal wetland laws, comparing provisions to preserve
                                                           (continued...)

       *                               ~~~~~~~~~~~~~~~9








The Corps, jurisdiction over wetlands does not preempt moreI
stringent state and local wetland laws and section 404 Corps
permits are also subject to state water quality certification
under section 401 of the Clean Water Act.  Section 404(g) of theI
Act allows states to assume the Corps' permit authority for
dredge and fill activities but thus far only the State of Michi-
gan has assumed the program."
    To protect undeveloped coastal barrier beaches, Congress
passed the Coastal Barrier Resources Act in 1982.3  The Act
creates a federal coastal barrier resources system of mappedI
barrier beaches, wetlands and estuaries, within which federal
expenditures and financial assistance, including federal flood
insurance, is limited to discourage development.

Marine Sanctuaries and Estuarine Reserves

    Congress has created three federal programs to protectI
unusually sensitive and significant ocean and coastal areas. The
Marine Sanctuaries Act33 authorizes the Secretary of Commerce,
with state and local consultation, to designate and protectI
discrete areas of the marine environment as national marine
sanctuaries. These areas must be of national significance and
must require additional controls to ensure comprehensive conser-
vation and management, including resource protection, scientific
research, and public education. The designation of an area as a
national marine sanctuary requires a comprehensive assessment of
its marine resources and commercial and recreational uses, andI
makes the area eligible for special management planning by the
National Oceanic and Atmospheric Administration. Currently there
are no national marine sanctuaries in the Gulf of Maine, althoughI
Stellwagen Bank has been nominated and is undergoing federal
review.


     30( ...continued)
sensitive habitats has been prepared for the Gulf of Maine
Council by Jonathan M. Kurland entitled, "Habitat Mitigation
Efforts in the Gulf of Maine: Stemming the Tide of Environmental
Degradation," January 1991.  The Report notes that federalI
wetland mitigation efforts have been "hampered by inconsistency
and lack of information." (at 42)
    31. Davis, "Making No Assumptions," 13 National WetlandsI
Newsletter 6 (1991).
    32 16 USC 3501-3510.3
      33The Marine Protection, Research and Sanctuaries Act of
1971, 16 USC 1431-1439.
                              10








 3          ~~~The EPA may establish national estuaries nominated by the
       Governor of a state under section 320 of the Clean Water Act.34
       A National Estuary designation entitles that estuary to federal
I    ~research money and assistance in the preparation of a comprehen-
       sive management plan. Massachusetts and Cape Cod Bay, and Casco
       Bay in the Gulf of Maine have been designated as National Estuar-
I     ~~ies and are currently preparing 5-year research programs for
       funding.

            In addition, the Coastal Zone Management Act provides for a
I     ~~National Estuarine Reserve Research System35 to establish and
       manage, through federal-state cooperation, a national system of
       estuarine reserves representative of the various regions and
I     ~~estuarine types in the United States.  The System is administered
       by the Department of Commerce and federal funds are available for
       site selection, management plan preparation, acquisition and
       development, and the implementation of research, educational, and
       administrative programs. The long-term operation of the Reserve
       is the responsibility of the state. Reserves have been estab-
       lished in Maine, Massachusetts and New Hampshire, including the
       Wells and Great Bay reserves in the Gulf of Maine.
       Wildlife Protection

            The wildlife resources of the Gulf of Maine are protected by
       two major federal statutes. The Endangered Species Act"6 pro-
       hibits the "taking" or harassment of endangered or threatened
       species. Federal agencies are prohibited from taking any action
       to jeopardize the continued existence of such species or adverse-
       ly affecting critical habitats. The federal government is
       authorized to provide funds and enter into management and cooper-
       ative agreements with states to administer areas and establish
       programs to conserve endangered and threatened species. State
       endangered species laws may be more restrictive but not less
       restrictive than the federal provisions.
            The Marine Mammal Protection Act"7 imposes a moratorium on
I     ~~the taking and importation of marine mammals, and establishes a
       federal permitting and regulatory scheme to allow takings inci-
       dental to commercial fishing and for scientific purposes. State
       law is preempted unless authority has been transferred to the
       state for the conservation and management of particular species.


            31 33 USC 1330.

              3 16 USC 1451.
            36 16 USC 1531-1544.

 3~         ~~~ 7'16 USC 1361-1407.








Marine ResearchI

    The federal government also has a number of programs that
provide funds for marine research in addition to those noted
above. The more significant of these programs include: the
National Sea Grant College Program; the National Science Founda-
tion; the Outer Continental Shelf Environmental Studies Program;I
the Land and Water Conservation Fund; the National Coastal
Resources Research and Development Institute; the Fish and
Wildlife Conservation Fund; and the recently enacted Regional
Marine Research Program, which establishes a grant program and
Regional Marine Research Board for the Gulf of Maine responsible
for developing a comprehensive marine research plan.



















                                       12~~~~~~~










       Iii. COMPARATIVE ASSESSMENT OF STATE LAWS

     To facilitate the comparison of state laws affecting the
Gulf of Maine marine resources, the following assessment is
separated into laws that "regulate activities" and laws that
establish "protected areas."


                     A.  Regulated Activities

1. Development Controls

     Planning and Zoning Controls

     Of the three Gulf of Maine states, only Maine has adopted
state-wide comprehensive planning, zoning and subdivision con-
trols to protect coastal and marine resources from the impacts of
development.

     Maine's Mandatory Shoreland Zoning Act3" requires munici-
palities to prepare Shoreland Zoning Ordinances that meet minimum
state standards to control development and protect resources
within "shoreland areas." Such ordinances apply within 250 feet
of saltwater bodies, rivers and coastal wetlands; within 250 feet
of great ponds and freshwater wetlands that exceed 10 acres; and
within 75 feet of streams. The State is authorized to impose
shoreline zoning ordinances upon municipalities that fail to
adopt adequate ordinances.

     Local governments must establish resource protection,
limited residential, and stream protection zoning districts
within shoreland areas. State standards require that local
governments implement specific measures within these zones to
protect coastal resources and water quality, including:

     -    construction setbacks (75-100 feet) and height
          limits (35 feet);

     -    minimum lot sizes (30,000-40,000 square feet);

     -    minimum shoreline frontages (150-200 feet);

     3  -    maximum lot coverages (20%); and

          soil erosion and sedimentation plans to revegetate
         disturbed soil, temporary runoff controls, and
          permanent soil stabilization measures.


     I  38 MRSA 435-447 (DEP Ch. 1000).

                               13








    Maine also provides financial incentives for each municipal-I
ity to prepare comprehensive plans and zoning ordinances through-
out their jurisdiction that meet 10 state growth management goals
under the Comprehensive Planning and Land Use Regulation Act."9  
These goals encourage orderly growth and development; protect the
State's rural character; prevent sprawl; protect water quality
and critical natural resources such as wetlands, wildlife,
fisheries habitat, sand dunes, shorelands, scenic vistas andI
unique natural areas; protect marine industries, ports, and
harbors; protect public access to the shore; and protect agricul-
ture, forest resources and outdoor recreation.I
    Each comprehensive plan must inventory natural and recre-
ational resources, and adopt policies and zoning ordinances that3
promote state goals. Plans must contain an inventory and analy-
sis of projected growth, natural and marine resources, recreation
and open space, and significant points of access. They must also
contain policies to promote the State's coastal policies.  EachI
Plan must establish growth areas and rural areas; rural areas
must protect water quality, agricultural and forest resources,
open space, scenic vistas and access to coastal waters. All
municipalities in Maine are scheduled to complete their compre-
hensive plans by 1996.

    Under Maine's Subdivision Law,"0 local governments must3
review small-scale subdivisions (divisions of land into three or
more lots) to ensure that subdivisions have no undue adverse
effects on:3
    -    scenic or natural beauty;
    -    wildlife or natural areas;
    -    public rights for physical or visual access to theI
         shoreline;
    -    water quality;
    -    soil erosion and flood zones; and
       - the disposal of sewage and solid wastes.
    Subdivisions exceeding 20 acres of 5 or more lots are
reviewed by the State under the Site Location of DevelopmentI

    In addition to these local zoning and planning requirements,3
Maine's Land Use Regulation Commission (LURC) establishes state
planning and regulatory authority throughout unincorporated


    31 30-A MRSA 4311-4344 (DECD Chs. 200-202).
    40 30-A MRSA 4401-4406.I

      4.38 MRSA 481-490 (DEP Chs. 372-376)3

                             14









areas.42 These areas are mostly inland but also include about
5% of the land within the State's coastal zone and over 200 of
its islands.  LURC has prepared a comprehensive land use plan
creating protection and management zones and Wetland Protection
Subdistricts. Land use standards establish minimum shoreline
frontages, minimum lot sizes, and maximum lot coverage require-
ments, depending on sewage and slopes; LURC also requires 75-125
foot shoreline setbacks from all water bodies.

     Massachusetts and New Hampshire do not utilize similar
state-wide comprehensive planning and zoning requirements to
address coastal issues.4" However, Massachusetts has
established two regional planning and regulatory agencies, the
Cape Cod Commission44 and the Martha's Vineyard Commission.45

     Both the Cape Cod and Martha's Vineyard Commissions are
authorized to review local government zoning and development
regulations and land use controls. They may prohibit development
and override local zoning controls within sensitive areas called
Districts of Critical Planning Concern (within 500-1000 feet of
the high water line, 100 feet of wetlands and streams, or unique
natural areas). The Martha's Vineyard Commission prohibits
septic systems, residential uses and dredge and fill activities
within 100 feet of the shore, and limits permitted uses to
protect water quality and prevent beach erosion. Both Commis-
sions have direct regulatory authority over large-scale develop-
ment (called Developments of Regional Impact).46 The Cape Cod
Commission also has the authority to prepare a Regional Policy
Plan for the entire Cape Cod area to identify critical resources,
provide open space, and establish policies to control growth,
waste disposal, and protect coastal resources.  The Cape Cod
Commission reviews local comprehensive plans for consistency with
the Regional Plan.


     42 12 MRSA 681-689 (LURC Ch. 10).

     43 New Hampshire does review subdivisions for septage and
water quality impacts under its Water Pollution and Waste Dispos-
al Law, RSA 485-A:29-44.

     4 Stat. 1989, c. 716.

     4 Stat. 1974, c. 637, as amended by Stat. 1977, c. 831.

     46 These include historic developments, bridges, roads or
driveways to the coast; developments exceeding 30 units (or 10
units in Martha's Vineyard); commercial development exceeding
10,000 square feet (or 1,000 square feet in Martha's Vineyard);
subdivisions of 15 or more acres; and in Martha's Vineyard,
development within 100 feet of the shoreline or wetland vegeta-
tion.

                               15









     State Coastal Management Programs

    Massachusetts, Maine and New Hampshire each have federally3
approved coastal management programs under the Coastal Zone
Management Act (CZMA).4  This entitles each state to receive
federal funding for implementing their coastal management pro-
grams,"8 and gives the states the authority to review federal
and federally permitted activities that affect their coastal
zones. Each state program is "networked" to coordinate existing
state programs and laws with coastal management policies thatI
call for the protection of marine resources, critical habitats,
shoreline processes, water quality, water dependent uses, and
public access. Gulf states have not adopted a centralized
approach to coastal management (i.e. direct state-wide planning
and regulation within the coastal zone through a "Coastal Commis-
sion").

    The Maine and New Hampshire coastal management programs are
administered by their state planning offices. The Massachusetts'
coastal program is located in the Executive Office of Environmen-
tal Affairs and therefore is on equal footing with other execu-
tive department agencies. The Massachusetts program implements
state coastal policies by assisting agencies in the promulgation
of regulations, which must be consistent with state coastalI
policies. Although it is a networked program, like Maine and New
Hampshire, the Massachusetts coastal program enjoys a more
central role in assuring effective and coordinated implementation
of state coastal management policies.49 Although Maine has
enacted legislation requiring all state, federal and local
agencies to conduct their activities consistent with state
coastal policies,"0 no mechanism has been established to specifyI
how state and local government bodies must comply with and
implement these policies.

     Each state program reviews federal, federally-funded, and
federally-permitted activities that affect their state's coastal


     47' 16 USC 1451-1464.

      48In 1990, New Hampshire received $.5 million, Maine $1.2I
million, and Massachusetts $1.5 million in federal CZMA funds.
      49For example, the Massachusetts coastal program commentsI
on environmental impact reports, and prepares coastal management
regulations implemented by other Executive agencies, such as the
tidelands and wetlands rules of the Division of wetlands and
Waterways. The coastal management programs of the other states
lack this authority and therefore do not play as central a role.
     50 38 MRSA 1801-1803.I

                               16








       zone to assure consistency with enforceable state coastal polic-
       es. In Massachusetts, consistency reviews are conducted by the
       coastal program office, while Maine and New Hampshire consistency
       reviews are conducted by other executive department agencies and
       coordinated through the coastal program office.

 I          ~~~Coastal facility Site Review

            Maine requires that large-scale development be reviewed by
       the State under the Maine Site Location of Development Act
       (buildings with footprints in excess of 60,000 square feet, the
       development of 10 units or more of housing, and subdivisions
       exceeding 20 acres).51 Large-scale projects must meet the foi-
       lowing state standards:
               - development must fit harmoniously into the envi-
                 ronment and not adversely affect existing uses,
                 scenic character, open space, air and water quali-
                 ty, or other natural resources. Secondary and
                 cumulative impacts -must be considered;
            -    development must not cause unreasonable soil ero-
                 sion, nor inhibit the natural transfer of soil or
  I            ~~~~movement of sand within sand dune systems.  Sedi-
                 ment must be removed from runoff waters, sediment
                 and erosion control plans must be prepared and
                 implemented, and stormwater management systems
                 must be properly designed;
            -    buffer zones must be established to protect adja-
  I            ~~~~cent waterbodies; and
            -    adequate water supplies, sewerage and soil waste
  I            ~~~~disposal must be provided.
            In New Hampshire, subdivisions and developments that alter
       more than 100,000 square feet of terrain (or that undertake
I     ~~construction "in or on the border" of surface waters) require a
       state permit, site plan, and water quality and runoff protection
       measures. 52 Massachusetts has no comparable state-wide law
I     ~~(with the exception of the Massachusetts Environmental Policy
       Act, see below).
            Massachusetts and New Hampshire have established state
I     ~~boards for licensing energy facilities and assuring that such



                38 MRSA 481-490 (DEP Chs. 372-376).
            52 RSA 485-A: 29-44 and 485-A:17 (Ws 415).

       *                              ~~~~~~~~~~~17








facilities do not have adverse impacts on coastal waters."3 In
Maine, energy facilities are licensed by the Board of Environmen-
tal Protection under the Site Location of Development Act and BEP
air quality rules.

     Environmental Impact Assessment

     Massachusetts is the only Gulf of Maine state that requires
environmental impact reports (EIRs) for certain state activities,
permits and assistance programs. The Massachusetts Environmental
Policy Act (MEPA) requires the Secretary of Environmental Affairs
to determine whether projects cause a significant impact upon the
environment; if so an EIR must be prepared and the Secretary must
certify that "all feasible measures have been taken to avoid or
minimize" the environmental impacts of the project.54 EIRs are
required for all dredging projects that exceed 10,000 cubic yards
of material, wetland alterations exceeding one acre, non-water
dependent projects on tidelands or submerged lands, and marina
projects exceeding 250 slips.55

     MEPA requires that EIRs analyze reasonable alternatives and
contain all feasible measures to minimize environmental impacts.
The Preparation of EIRs are not required where an EIS is prepared
under National Environmental Policy Act or where the Secretary
finds that an EIR would cause "undue hardship."


2. Water Quality Controls

     Ocean Dumping

     Maine, Massachusetts and New Hampshire regulate ocean
dumping through state clean water laws and statutes regulating
the disposal of dredged material. Each state has adopted a water
classification system for inland and marine waters based upon


     s3 The Massachusetts Energy Facilities Siting Law, MGLA
164:69G-S (980 CMR 1.00-11.00) and the New Hampshire Energy
Facility Evaluation, Siting, Construction and Operation Law, RSA
162-H:1-16 (NHAR Ener. 100-400).

     s4 MGLA 30:61-62H (301 CMR 11.00).

     55 Environmental Notification Forms (ENFs) must be filed
with the Secretary for a number of smaller coastal related
projects (such as dune alterations, dredge and fill operations,
armoring coastal banks, small marinas, sewage discharges and
mineral extractions). These projects may require EIRs if the
Secretary finds that they will have a significant impact on the
environment.

                               18









water quality standards in which discharges are generally prohib-
ited in the highest rated waters (A or SA waters). Discharges
are permitted in waters classified B or C so long as they do not
lower the classification.

     Massachusetts requires that the disposal of dredged material
or wastes, and the filling of state waters, be licensed and
supervised by the Division of Water Pollution Control."6 Unrea-
sonable degradation or endangerment of the marine environment is
prohibited.  Massachusetts prohibits dumping (except specially
authorized municipal wastes) in the State's five designated ocean
sanctuaries, and open ocean dumping in other offshore areas is
permitted only in low-energy, sandy sites and only if there are
no significant biological impacts or adverse impacts on fisher-
ies. Ocean dumping of dredged spoils must occur only within
designated sites.

     Maine regulates ocean dumping through its Natural Resources
Protection Act, but requires only that the dredged spoils be
tested, that transportation routes minimize adverse impacts on
the fishing industry, and that disposal sites be geologically
stable.57 The disposal of dredged spoils into sites approved by
the Army Corps of Engineers pursuant to Section 404 of the
federal Clean Water Act is exempt from state discharge require-
ments.

     New Hampshire regulates ocean dumping under the Water
Pollution and Waste Disposal Law and the Filling in Public Waters
Law.58 Ocean dumping and dredge and fill activities are
licensed by the Division of Water Supply and Pollution Control
and the Wetlands Board, but specific ocean dumping standards are
not provided.

     Discharges from Vessels

     Section 312 of the federal Clean Water Act prohibits the
discharge of untreated sewage from marine sanitation devices into




        Dredged Material Disposal and Filling in Waters, MGLA
21:27(12), 21:42, 91:52-56 (310 CMR 9.26, 9.40, 314 CMR 9.00).
Dredging is prohibited between March and June to protect fisher-
ies and must otherwise be conducted in a manner that protects
fisheries and shellfish beds.

        38 MRSA 480-D(9) and E.

     58 Water Pollution Law, RSA 485-A:1-22; Filling in Public
Waters, RSA 482-A:16-25.

                               19









coastal waters.59 States may adopt more stringent controls, and
prohibit all discharges from holding tanks (even if chlorinated)
into marine waters, only if they have an approved program that
requires and provides vessel pump out facilities. Massachusetts
and Maine require marinas to provide pump out facilities for
cleaning out holding tanks and disposing of sewage and sanitary
wastes, but New Hampshire does not.60

     Discharges into both fresh and salt waterbodies from holding
tanks are prohibited in Massachusetts, but Maine and New Hamp-
shire prohibit such discharges only into fresh waters.6" Maine
and Massachusetts prohibit the use of Tributyltin as an
antifouling agent.62

     Point Source Pollution

     Massachusetts, Maine and New Hampshire have each adopted
comprehensive clean water discharge laws that generally have the
following components:63

       -    they prohibit unlicensed discharges of pollutants from
          pipes, outfalls and other discrete conveyances;

       -    license, regulate and fund the construction, oper-
          ation and maintenance of sewage treatment facili-
          ties and water pollution abatement projects;



      9 33 USC 1322.

     60 Massachusetts requires that marinas provide one sewage
pumpout facility for every 50 berths and boatyards must provide
adequate oil, grease and sediment traps. MGLA 91:59B, 310 CMR
9.39.  Maine requires pumpout facilities only for marinas with at
least 18 slips or moorings for vessels that exceed 24 feet in
coastal waters. 38 MRSA 423.

     61 Maine Protection and Improvement of Waters, 38 MRSA 423.
New Hampshire also prohibits greywater discharges into fresh
waters. Marine Toilets and Disposal of Sewage from Boats, RSA
487:1-14.
     62 38 MRSA 419-A.

     63 The Maine Protection and Improvement of Waters Act, 38
MRSA 361-434, 464-470 (DEP Chs. 514-596); The Massachusetts Clean
Water Act, MGLA 21:27-48 (310 CMR 41.00, 314 CMR 3.00-4.00,
10.00-14.00); and the New Hampshire Water Pollution and Waste
Disposal Law, RSA 485:27-30, 485-A:1-54, 486:1-18 (NHAR Ws and
Env-Ws 403, 415-438, 600-1000).

                               20









          establish a water classification system for all
          inland and marine water with minimum water quality
          standards.64

          establish a waste discharge license system with
          effluent limitations for discharges into surface
          waters; and

          monitor water quality and conduct scientific re-
          search.

     Regional Water Quality Planning.   Massachusetts has estab-
lished a program for reducing, controlling, and eliminating
discharges into state waters through the preparation of compre-
hensive river basin and regional plans.65 Maine authorizes the
formation of Lake and Coastal Watershed Districts to acquire
property, conduct research, establish assessment districts, and
adopt programs to manage and protect water quality and aquatic
resources on a watershed basis.66 Maine also requires water
quality planning in local comprehensive plans. New Hampshire has
a Water Protection Assistance Program to encourage municipalities
to prepare water resource management and protection plans to plan
water supply projects, identify potential threats to local water
quality and supplies, and design management strategies.67

     Septic Waste Disposal. Massachusetts has adopted minimum
state standards for individual sewage disposal systems licensed
by local boards of health.6"  The Massachusetts Wetlands Protec-
tion Act generally prohibits subsurface sewage disposal systems
within and adjacent to (within 100 feet of) coastal and freshwa-

     64 Each classification has standards for dissolved oxygen,
coliform bacteria, shellfish harvesting, and direct discharges.
Generally, direct discharges are prohibited into highest rated
(A) waters; lowest rated (C) waters must be suitable for fishing
and secondary contact recreation.

     65 MGLA 21:27(10).

     66 38 MRSA 2001-2022. Maine currently has no coastal
watershed districts and only one lake watershed district (the
Cobbossee Watershed District). Watershed districts in Massachu-
setts are established on an ad hoc basis.

     67 RSA 4-C:19-23 (NHAR PLN 100-600).

     68 MGLA 21A:13, 111:17 (310 CMR 11.00, 15.00). Individual
systems may not discharge directly into watercourses and may not
be installed, altered or repaired if there is an accessible
common sanitary sewer system. Septic tanks must accommodate 150%
of estimated flow and have a minimum capacity of 1,000 gallons.

                               21









ter wetlands.  The State's environmental code requires 100 footI
setbacks from surface water supplies and 50 foot setbacks from
other water bodies.

     In Maine, individual septic systems are licensed by local
plumbing inspectors licensed by the Department of Human Services
pursuant to the State Plumbing Code.6s9 Single family lots with
septic systems must be at least 20,000 square feet, be set back
at least 100 feet from water bodies, and have a minimum 100 foot
shoreline frontage."0 Maine also prohibits new overboard dis-
charges of residential sewage (discharges of domestic pollutantsI
not treated in municipal sewage plants or subsurface septic
systems) and has established a program to fund the elimination of
existing residential and commercial overboard discharges."' 

    New Hampshire licenses subdivisions and individual septic
systems to prevent pollution of public and private water supplies
(small residential systems designed and installed by the ownerI
are exempt)."2 septic systems must be set back at least 75 feet
from wetlands. However, the regulations allow 25 feet of wet-
lands to be filled to comply with the 75 foot setback require-
ments."3 New Hampshire requires that sellers of waterfront
property provide septic system assessments to prospective buyers
to determine if the site meets current standards.3

     Land Application of Sludge. Massachusetts permits the land
application of sludge and septage only for "beneficial purposes"
(providing nutrients or improving the quality of soil to grow
vegetation)."4 Land application must also be adequately stabi-
lized and set back to prevent seepage into surface waters.

    Maine requires each municipality to dispose of its ownI
sludge and septic wastes subject to state standards and provides
for stabilization and setback requirements for land spreading to


    69 State of Maine Subsurface Wastewater Disposal Rules,
Department of Human Services, Chapter 241.
     70 12 MRSA 4807-A.

     71 38 MRSA 414-A. Existing overboard discharges may be
relicensed if state funds are unavailable, if there are no
alternatives, and if discharges are not into redeemable shellfish
beds. DEP Ch. 596.

     72 Ws 1004. subdivisions are required to provide 30,000-
70,000 square foot minimum lot sizes.

      73Ws 1007.04 and Wt 303.08.

      74MGLA 21:43 (310 CMR 32.00).

                               22









prevent seepage into surface waters and groundwater aquifers.75
Property owners may discharge residential septage onto their
property twice a year provided it is at least 300 feet from
property boundaries or surface waters.

     Interstate Pollution Control. Maine, Massachusetts and New
Hampshire all belong to the New England Interstate Water Pollu-
tion Control Compact.76 The Compact creates the New England
Interstate Water Pollution Control Commission to abate existing
and future pollution of interstate inland and tidal waters. The
Commission coordinates interstate water pollution control efforts
of the member states through interstate forums on water related
environmental issues; reviews state water classification systems;
maintains a water quality sampling and testing network; contracts
with states to perform specific regulatory and planning func-
tions; and establishes standards and programs for training,
educating and certifying operators of waste water treatment
plants. 

     Nonpoint Source Pollution

     Massachusetts, Maine and New Hampshire have all adopted
Nonpoint Source (NPS) Management Plans pursuant to Section 319 of
the federal Clean Water Act.  These Plans coordinate existing
state laws and regulations, and generally contain the following
components:

     I  -    they describe existing NPS pollution control
          strategies;

     I  -    list priority waters impaired or threatened by NPS
          water pollution;

          identify the most important categories of NPS
          pollution within the state;



     75 Waste Management, 38 MRSA 1301-1310B (Chs. 420, 567).

     76 Maine (38 MRSA 491-537); Massachusetts (MGLA 21, App. 1-
5); and New Hampshire (RSA 484:17-26). Other member states
include Connecticut, New York, Rhode Island, and Vermont.

     77 Massachusetts and New Hampshire also participate in the
Northeastern Water and Related Land Resources Compact, which was
formed to conduct research, resolve interstate conflicts and
coordinate polices on water and related land resources. The
Northeastern Water and Related Land Resources Compact, MGLA 91
App:4-1, 4-2; RSA 484:13-16. Maine is not a participant. It is
uncertain whether the Compact is still active.

                               23








       - define best management practices (BMPs) for each
         NPS category; and

       - establish a schedule to implement NPS pollution
         control strategies.

    Massachusetts, Maine and New Hampshire have adopted ground-
water protection strategies that include groundwater classifica-
tion and discharge licensing systems. New Hampshire has also
recently adopted a wellhead protection program to protect ground-
water resources that supply public drinking water."8

     Each state has a program to monitor existing and license new
underground storage tanks to prevent leakage of toxic and hazard-
ous wastes into surface and groundwater systems.79 Massachu-I
setts also requires service stations and marinas to accept waste
oil and have waste oil retention facilities to prevent discharges
into sewers and waters.

     Erosion control mechanisms and BMPs are key elements in
addressing the impacts from NPS pollution. New Hampshire re-
quires state alteration of terrain permits for excavations thatI
exceed 100,000 square feet and border on surface waters, and
requires the preparation of erosion and sedimentation control
plans.  However, smaller projects are reviewed by local govern-I
ments without state requirements to assure the implementation of
erosion control BMPs. Maine provides comprehensive erosion
controls through a number of existing laws.80 Massachusetts,3

     '78 The wellhead protection program increases inspection and
enforcement and prohibits new landfills, junkyards, septageI
lagoons and other activities within designated groundwater areas.
Personal Communication, Ann Poole, New Hampshire Nonpoint Source
Program, February 1, 1991.

     79 Maine Underground Oil Storage and Ground Water Protec-
tion Law, 38 MRSA 561-570; Massachusetts Rules, 527 CMR 9.00. The
New Hampshire program, however, only regulates tanks over 1,100I
gallons. Local governments are encouraged to develop BMPs and
inventories for smaller tanks (for home heating oil, for exam-
pie). RSA 146-C. New EPA regulations will apply federal stan-
dards to tanks over 250 gallons.
     go Large scale projects exceeding 60,000 square feet and
subdivisions exceeding 20 acres require sedimentation plans andI
permanent erosion control measures under the Site Location Law;
in smaller subdivisions undue soil erosion is prohibited under
the Subdivision Law. Municipalities must designate resource
protection zones under the Mandatory Shoreland Zoning Act in
which development and clearing vegetation within 250 feet of high
                                                  (continued...)

                               24









however, has no comprehensive state-wide erosion and sedimenta-
tion control requirements.

     Maine, Massachusetts and New Hampshire have established
voluntary soil and water conservation districts to conserve soil,
water, wildlife and related natural resources, and to prevent
soil erosion, flooding and sediment damage.8"  Conservation
Districts may conduct surveys, research, and demonstration
projects, acquire property, prepare comprehensive plans, and
implement watershed-wide preventive and control measures.

     New Hampshire is the only state that has established a
program to control acid rain by reducing sulfur dioxide emissions
by 50% by the year 1995.82


3. Hazardous Wastes

     Maine, Massachusetts and New Hampshire each have hazardous
waste management programs that:

          license hazardous waste operators and the trans-
          portation of hazardous wastes within the state;

          license the siting of facilities to dispose of
          hazardous wastes and require setbacks from water
          bodies;

     -    identify and clean up hazardous waste sites; and

     I  -    administer a hazardous waste cleanup fund.83



     8.(.. .continued)
value wetlands, on slopes exceeding 20 degrees, and in areas
subject to severe erosion is prohibited.  And "unreasonable"
erosion is prohibited within and adjacent to all wetlands,
rivers, lakes and tidal waterbodies under the Natural Resources
Protection Act.
     82 Maine, 12 MRSA 1-200; New Hampshire, RSA 430-B1-10. The
Massachusetts program is non-statutory.

     82 The Acid Rain Control Act, RSA 125-D:1-13.

     82 The Massachusetts Hazardous Waste Management Act, MGLA
21C:1-14 (310 CMR 30.00, 314 CMR 8.00); the Maine Hazardous
Matter Control Law, 38 MRSA 1317-1319, 1361-1371, 1401-1404 (DEP
Chs. 800-860); and the New Hampshire Hazardous Waste Management
Program, RSA 147(A-D) (NHAR He-P 1905).

                                25









     In addition, Massachusetts requires voter approval for the
construction of nuclear power plants and siting facilities for
the disposal or storage of low-level radioactive wastes.84  The
State Legislature must also certify that there exist adequate
means for the disposal of radioactive wastes.

    Maine has specifically rejected the location of high-level
radioactive wastes within the State,85 and requires special
legislative and voter approval of facilities for the disposal and
storage of low-level radioactive wastes.86 Maine has also de-
veloped a program requiring facilities that use hazardous or
toxic wastes to reduce such wastes by 30% by the year 1997.87

     New Hampshire has no special legislation that limits the
location of nuclear power plants or the disposal of radioactive
wastes within its boundaries.


4. Oil Spill Prevention

    Maine, New Hampshire, and Massachusetts each have comprehen-
sive oil pollution prevention laws.88 These laws provide for
licensing oil terminal facilities and vessels used to transport
oil and:

     -    prohibit the discharge of oil into state waters;

     -    assign principal responsibility to the state for
          cleaning up spills;

     -    administer an oil spill clean up fund for clean-up
          costs, uncompensated damages, and third party
          damages (except for Massachusetts);




     84 Nuclear Power and Waste Disposal Voter Approval and
Legislative Certification Act. MGLA 164 App. 3(1-9).

     as 38 MRSA 1461A-1466.

     86 38 MRSA 1479 and 1493.

     87 The Toxic Use Reduction Law, 38 MRSA 2301-2312.

     as Maine Oil Discharge Prevention and Pollution Control
Law, 38 MRSA 541-560 (DEP Chs 600-680); Massachusetts Oil Termi-
nals, Pollution Prevention Law, MGLA 21:27(14), 50-50B, 91:59-59A
(314 CMR 15.00); and New Hampshire Oil Spillage in Public Waters
Law, RSA 146-A:1-15, 146-D:1-9 (NHAR Ws 402, 404, 410-411).

                               26









               - provide unlimited liability for damages incurred
                 by third parties, clean up costs and natural re-
                 sources;
               - require strict liability for petroleum facilities
                 and handlers for costs and damages incurred from
                 spills, and stiff civil and criminal penalties;
                 and

               - limit responder liability, under good Samaritan
                 provisions, for persons who undertake cleanup
                 operations without charge or at the state's re-
  *             ~~~~quest, unless willfully or grossly negligent.

            only Maine requires the preparation and approval of oil
       spill contingency plans for all licensed terminals. Terminal
I     ~~contingency plans must include a comprehensive plan to cleanup
       spills, a list of abatement equipment available for cleanup
       activities, a procedure to notify the state and affected persons,
       and methods for disposing of recovered wastes.89 The Maine
       Department of Environmental Protection is authorized to conduct
       unannounced drills to determine the adequacy of response plans.
       Maine also subjects terminals to liability for spills from
       vessels within 12 miles of shore.9"
            Although Maine does not have a State oil Spill Response Plan
        te Governor has the authority to declare a state of emergency
       under the Maine Civil Emergency Preparedness Act should an oil
       spill occur."1 An appendix to the State's overall emergency
       response plan dealing specifically with oil spills is being
I     ~drafted.  It is uncertain how the plan will coordinate the
       actions of the Maine Emergency Management Agency and the Maine
*      ~~Department of Environmental Protection.


            89 The new federal oil Pollution Act establishes a National
       Planning and Response System that requires, among other things,
       Area Contingency Plans to assure the removal of worst case
       spills, and Tank Vessel and Facility Response Plans reviewed by
*      ~~the federal government for all vessels and facilities.

            90 38 MRSA 552(2).

 I   ~~~~9  37-B MRSA 701-806.

            92 See "Report of the Commission to Study Maine's Oil Spill
I     ~~Cleanup Preparedness," Office of Policy and Legal Analysis,
       November 1990, at 18 and 41. The Commission's Report addresses
       Maine's capacity to respond to a worst-case spill, oil spill
       prevention strategies, Maine's oil spill laws, and the adequacy
       of its cleanup fund.
       *                              ~~~~~~~~~~~~27









    Massachusetts has a State Contingency Plan for oil and
hazardous materials that establishes notification and cleanup
procedures.93 Although the State does not require licensed
terminals to have oil spill contingency plans, it does have the
authority to require terminals to have suitable equipment avail-
able for a spill.94 Maine and Massachusetts require that boom
devices be deployed around all vessels transferring petroleum
products and require state approval for the use of dispersants.

     Massachusetts and New Hampshire have limited bonding re-
quirements for facilities and vessels entering state ports which
may be applied to costs for removing and containing spills; Maine
has no financial responsibility requirements. However, the new
federal Oil Pollution Act of 1990 establishes uniform require-
ments that financial responsibility by vessel owners and onshore
facilities be demonstrated through a number of measures, includ-
ing evidence of insurance, surety bonds, and letters of credit.


5. Offshore Oil/Gas/Mineral Development

     Massachusetts and Maine require state exploration and
extraction permits for the exploration and development of off-
shore oil, gas, and minerals.95  Maine, however, excludes min-
ing for sand and gravel deposits from its mining provisions."
Massachusetts prohibits offshore drilling and mining within its
five established ocean sanctuaries and in other offshore areas
such activities must not "unreasonably interfere with navigation,
fishing or conservation of natural resources."97

     Maine law contains similar provisions with regard to activi-
ties on submerged lands leased under its Submerged Lands Leasing
Law,98 but does not address the conservation of marine resources


     9 310 CMR 40.00.

     9  MGLA 21:50.

     9  Massachusetts Mineral Resources, MGLA 21:54-56; Maine
Mining on State Lands, 12 MRSA 541-550.

       12 MRSA 549-A(6). However, offshore sand and gravel mining
must comply with Maine's Submerged Lands Leasing Law. 12 MRSA 558-
573.

     9  310 CMR 29.00.

     98 Leases of submerged lands in Maine must not unreasonably
interfere with public access or public trust rights to intertidal
                                                   (continued...)

                               28






U       ~nor specifically address the impacts from proposed sand and
       gravel mining operations."9 New Hampshire's permit requirements
       for the removal of sand and gravel from beneath navigable waters
I      ~only provides for the protection of public and private rights.
       In Massachusetts, sand and gravel mining is prohibited in shell-
       fish and finfish spawning and feeding areas, areas that serve as
I      ~ ~a source of sediment for beaches,  and where it would adversely
       affect waves and currents.











  ~~~~..cninud
~~lns aigain ihn rohreitn aieuedmn
~~~isthaviaiiyocomrilfsigsrieanfal-
~~ies rteigesaders frpra wes an
~~~SbegdLnsLaingLw    2MS 5-(
  I~~~~Se1 MS 5()59

        I~~~~~~~~~~~~2








                        B. Protected Areas

1. Coastal Wetlands and Sand Dune Protection

    Maine regulates uses within coastal and freshwater wetlands,
sand dune systems, rivers, streams and significant wildlife
habitats under one statute, the Natural Resources Protection Act
(NRPA) ..ï¿½ State permits are required for construction activi-
ties within "protected natural areas" (sand dune systems and
significant wildlife habitats), and within or "adjacent to" all
coastal wetlands, freshwater wetlands and great ponds exceeding
10 acres, and rivers and streams with watersheds exceeding 25
miles. Maine's Mandatory Shoreland Zoning Act requires local
governments to establish "resource protection" zones within 250
feet of moderate or high value wetlands, within which residential
and commercial development is prohibited. Activities affecting
freshwater wetlands -and ponds under 10 acres are regulated by
local governments.TM

     In Massachusetts, development affecting coastal and inland
wetlands is regulated by local governments pursuant to standards
established under the Wetlands Protection Act."02  The State
implements the Protection of Coastal Wetlands Law (now called the
Wetlands Conservancy Program)..3 and the Inland Wetlands
Restriction Act'ï¿½4 which authorizes the adoption of regulatory
orders imposing restrictions upon selected coastal and inland
wetlands. Subsequent development must comply with state orders
as well as local government permit reviews.

     The Massachusetts Wetland Protection Act requires local
governments or conservation commissions to regulate alterations
within freshwater wetlands exceeding 5,000 square feet, all
coastal wetlands, beaches, dunes, rivers, lakes, lands under said
waters, or lands subject to tidal action or coastal flooding.
Activities within 100 foot buffers of such areas may be regulat-
ed. Activities outside the 100 foot buffer zones may also be
regulated but only after they "actually alter" such areas. Local



     o00 38 MRSA 480 A-S (DEP Chs. 310, 343-345, 355).

     3o0 Projects within these wetlands are also regulated by the
Army Corps of Engineers pursuant to Section 404 of the Clean
Water Act, 33 USC 1344.

     102 MGLA 131:40-45 (310 CMR 10.00).

     .03 MGLA 130:105 (302 CMR 4.00).

     104 MGLA 131:40A (302 CMR 6.00).

                               30









government actions may be appealed to the Massachusetts Depart-
ment of Environmental Protection.

     In New Hampshire, the State Wetlands Board regulates dredg-
ing, filling and construction activities within and adjacent to
(within 100 feet of the highest observable tide line) coastal
wetlands, sand dunes, and state waters."'5 In addition, the
Board regulates activities within freshwater wetlands of any size
but does not have fixed buffer zones. Local governments are
authorized to designate "prime wetlands," within and adjacent to
which no "significant" net loss of wetland values may occur.
"Adjacent" is defined on a case-by-case basis depending on the
impacts of the activity.

     Wetland Standards."'ï¿½ Massachusetts has adopted stringent
standards protecting inland wetlands by generally prohibiting the
destruction of vegetated wetlands and wetlands habitat. The
destruction of up to 5,000 square feet of bordering vegetated
wetlands is permitted, but only if replaced on a 1:1 basis.1ï¿½?

     Maine and Massachusetts prohibit unreasonable adverse
impacts on coastal wetlands. Massachusetts prohibits projects
within or adjacent to (within 100 feet) salt marshes from de-
stroying "any portion" of the wetland or adversely affecting
productivity, and applies a "no net loss" wetlands policy as part
of its federal consistency review process. Maine's new regula-
tions prohibit activities that would cause a loss in "wetland
area, functions and values" if there are less damaging "practical
alternatives." Maine has also established mitigation banking and
wetland compensation programs."08


     105 Fill and Dredge in Wetlands Law, RSA 482-A:1-27 (NHAR Wt
100-800).

     106 For a more detailed analysis of state and federal
wetland laws and habitat protection provisions see Jonathan M.
Kurland's Report to the Gulf of Maine Council on the Marine
Environment entitled, "Habitat Mitigation Efforts in the Gulf of
Maine: Stemming the Tide of Environmental Degradation," January
1991.
     107 310 CMR 10.55.

     108 Mitigation is required if wetland functions are lost at
a minimum 1:1 ratio for restoration, enhancement or creation of
Class II or III wetlands; at a minimum 2:1 ratio for Class I
wetlands; and at a minimum 8:1 ratio for preservation of existing
wetlands.  A mitigation banking program may also be established
to compensate for up to 25 acres of wetland alterations. DEP Ch.
310. Class I wetlands include all tidal and subtidal lands and
                                                   (continued...)

                               31








    New Hampshire's no net loss of wetlands policy is applicable 
only to projects that significantly affect "prime" freshwater
wetlands mapped by local governments."'0 Dredging in coastal
wetlands is only permitted between November 15 - March 15.  Fill3
in freshwater wetlands not exceeding 3,000 square feet or 5% of
the affected wetland, and excavation of ponds less than I acre,
are considered minimum impact projects.5
    Dune Construction and Sea Walls. Maine prohibits unreason-
able soil erosion and sedimentation and the inhibition of the
natural transfer of soil from the terrestrial to the marineI
environment. Sea walls and all other structures within frontal
dunes or v-zones, are prohibited, but sea walls along banks are
permitted so long as they do not unreasonably affect beach
sediment or shoreline processes.
    Massachusetts requires that construction within or adjacent
to (within 100 feet) coastal dunes must not adversely affect duneI
forms, vegetation or stability, or impede the lateral and seaward
migration of sand. Sea walls on coastal dunes are generally
prohibited. Sea walls on coastal banks are permitted to prevent
storm damage to buildings in existence prior to 1978, but only if
no other protective measures are feasible. Construction within
100 feet of coastal banks must not adversely affect the movement
of sediment and must preclude the future use of sea walls orI
bulkheads.
    New Hampshire prohibits construction on sand dunes and theI
alteration of sand dunes or dune vegetation, but has no specific
policies prohibiting the construction of sea walls.

    Wildlife Habitat. Maine's Natural Resources Protection Act 
prohibits unreasonable harm to fisheries and significant wildlife
habitat, including plant or aquatic habitat.  Massachusetts 
wetlands laws also prohibit adverse effects on marine fisheries3
and wildlife habitat from projects within or adjacent to fresh or 
coastal wetlands, and the interference with bird nesting habitat
on sand dunes.j

      10(... continued)
areas containing threatened or endangered species or habitats of1
such species. Class II wetlands are areas within 250 feet of
coastal wetlands with at least 20,000 square feet of marsh
vegetation or open water, or floodplain wetlands. All other
wetlands are Class III wetlands.
    109 RSA 482-A:11. "Prime" wetlands are defined in the Board's
wetland  regulations  (Wt  701).   Generally,  they  must  containI
important wetland values and be of "substantial significance...
because of their size, unspoiled character, fragile condition, or
other relevant factors."  RSA 482-A:15.3

                              32









            New Hampshire is authorized to consider the impacts of
       development in or near wetlands on wildlife habitat, but specific
       guidance and standards are not provided."'1
            Recreation. Maine prohibits the unreasonable interference
       with scenic, aesthetic, recreational or navigational uses,
I     ~including established public rights of access.  These provisions
       apply to fresh and saltwater wetlands, great ponds, rivers,
       streams, and significant wildlife habitats."'- Massachusetts
I    ~ ~has extensive recreational requirements for projects within
       tidelands in its Chapter 91 licensing provisions."' The New
       Hampshire Wetlands Board is authorized to consider impacts upon
       navigation, aesthetics, abutting owners, water quality, flooding,
       recreation and other public benefits, but no definitive standards
       are established. Mew Hampshire wetlands law also requires that
3      ~~filling below the high tide line must protect public rights.

            Barrier Beach Systems. Maine has established a Coastal
       Barrier Resources System which prohibits the expenditure of state
       funds for development within barrier beaches designated under the
       U.S. Coastal Barrier Resources Act."" Massachusetts Executive
       Order 181 prohibits state investment on barrier beaches, except
       for the maintenance of navigational channels. New Hampshire has
       no barrier beach law but few, if any, undeveloped barrier beaches
       remain within the state.


1      ~~2. Tidelands/Submerged Lands Management

            Maine and Massachusetts own all submerged lands seaward of
       the low-water mark or 1,650 feet seaward from the high tide line,
       whichever is further landward. Intertidal lands, between the low
       and high tide line, are privately owned by the riparian property
       owner subject to a public easement for fishing, fowling and
       navigation."' Mew Hampshire owns submerged lands seaward of the
       high tide line.


            113.0 For a complete discussion of the wildlife habitat
       provisions of state and federal wetland laws, including the laws
       of Canada and the Provinces of Nova Scotia and New Brunswick, see
       Kurland, "Habitat Mitigation Efforts in the Gulf of Maine."

            113, 38 MRSA 480-D.
            I~ 1See Massachusetts Public Waterfront Act under
I     ~~Tidelands/Submerged Lands Management.
            1.1:3 Coastal Barrier Resource System Law, 38 MRSA 1901-1905.

  U         "i' ~~Bell v. Wells, 557 A.2d 169 (1989).

        1                              ~~~~~~~~~~~~33








    Maine manages state-owned submerged and intertidal landsU
under the Submerged Lands Leasing Law"'1 and has relinquished
title to and public trust rights in all submerged and intertidal
lands filled before October 1975.-"~  The Submerged Lands law      
prohibits filling state intertidal or submerged lands unless
there are no "practical alternatives," no reasonable opportuni-
ties to relocate, and public trust rights are not impaired.
Privately owned intertidal lands are protected by comparable
standards under the Natural Resources Protection Act.

    The Massachusetts Public Waterfront Act"' requires state3
tidelands licenses for uses on filled as well as flowed tidelands
and applies public trust rights of fishing, fowling and naviga-
tion to filled tidelands, so long as such lands are not land-
locked (i.e. landward of the first public road or no more than  
250 feet from the high tide line, whichever is further landward).

    New Hampshire manages its submerged lands under the Convey-
ance of Property Under Water Law."' No spec if ic requirements
for protecting public rights or water dependent uses have been
established.

    Public Benefits. The Director of the Maine Bureau of Public
Lands is authorized to require public benefits from submerged
lands leases, such as public access and recreational facilities,  
but rules have not yet been promulgated that specify how such
benef its should be provided."'

    Massachusetts, on the other hand, has adopted extensive
regulations providing public benefits for leasing public tide-
lands and submerged lands. Tidelands permits (known as Chapter
91 licenses) are required for any filling, altering, or newI
construction, as well as any change in use, continuation of use
not previously authorized, or expired use. All uses must be for
a "proper public purpose" and must protect public rights by:
     -    not significantly interfering with navigation and
         rights to swim over public and private tidelands;

    3.1 12 MRSA 558-573.
     116. r 12 MRSA 559.

     "1  37MGLA 91:1-63 (310 CMR 9.00).3

        RSA 4:40(a-e).

        The Director of the Bureau may refuse to lease submerged3
lands where it would interfere with customary or traditional
public access ways to, or public trust rights in, on or over
intertidal or submerged lands.

                               34








  I         -   ~~~providing continuous lateral public access rights
                 on private and filled tidelands for fishing, f owl-
                  ing, and navigation;
               - allowing public swimming, strolling and other
                 recreational activities on "public" tidelands and
                  submerged lands; and
               - allowing public access to private marinas, and
                  requiring that public slips, moorings and facili-
                 ties be provided.

            Water Dependent Uses. Maine encourages the use of its
       submerged lands for commercial fishing and other water dependent
       uses by leasing submerged lands for such uses at 1%-2% of fair
       market value (compared to 10% for upland or non-water dependent
1     ~~uses).'20' It also requires that leases do not unreasonably
       interfere with navigation, fishing and other existing marine
       uses, and do not diminish the availability of services and
       facilities for commercial marine activities. Maine also limits
       the conversion of existing water dependent uses to non-water
       dependent uses on submerged lands or state-owned tidelands."''

             In Massachusetts, water dependent uses on tidelands are
       preferred and are provided extensive protections. Non-water
       dependent uses must not disrupt or diminish the capacity of land
       to accommodate water dependent uses, must devote reasonable
       portions for water dependent uses including public pedestrian
       access, must promote public uses, must be primarily for public
       purposes, and must provide 1:1 open space. Private non-water
I     ~~dependent uses are prohibited on flowed tidelands or on the
       ground level of structures within 100 feet of the shoreline.
            Underwater Archeological Resources. Massachusetts is the
       only Gulf of Maine state with legislation regulating the explora-
       tion, removal and salvage of underwater archeological resourc-
I      ~~~~es.  122

            120 The f air market value of submerged lands is based upon the
       assessed value of the adjacent upland parcel multiplied by the
       reduction factor based upon the use of the leased submerged land.
       12 MRSA 558-A(2)(A).

            121 Conversion to non-water dependent uses is permitted only
       if there are no unmet demands for water dependent uses, there are
       no alternative sites, and public trust rights are not impaired.
            1212 The Massachusetts Underwater Archeological Resources
       Act, MGLA 6:179-180 (312 CMR 2.00). The federal government has
       delegated the authority to preserve shipwreck sites to the states
       under the Abandoned Shipwreck Act, 43 USC 2101-2106.

       *                              ~~~~~~~~~~~35









    Aquaculture.  Maine, Massachusetts, and New Hampshire have
adopted laws for leasing submerged lands for aquaculture. The
Maine Aquaculture Leasing Act.23 establishes a procedure for
leasing state-owned intertidal and submerged lands for finfish
and shellfish aquaculture and resolving use conflicts.  Aquacul-
ture must not unreasonably interfere with the ingress and egress
of riparian owners, navigation, fishing and other uses of the
area, or public use and enjoyment within 1000 feet of public
beaches, parks and docks. Leases must be located at least 2000
feet from other aquaculture sites or fish weirs.

     Maine also provides for extensive environmental controls of
aquaculture sites. Prior to issuing leases, the bottom must be
surveyed, sampled and a video must be made. Aquaculture opera-
tions are prohibited in SA waters and viscera must be disposed
only in authorized locations. Finfish aquaculture sites should
provide for 10 foot clearance from the bottom, .1 knot minimum
currents, and biannual infauna benthic surveys. The State must
certify, prior to transporting marine organisms into state waters
(such as salmon smolts), that indigenous marine life and its
environment will not be endangered by bacteria, fungus, virus or
other infectious diseases or parasites.  In addition, all import-
ed eggs must be disinfected and certified "disease free."

     New Hampshire also requires that persons wishing to conduct
finfish or shellfish aquaculture operations on tidelands or
submerged lands obtain a license.'24 Aquaculture operations
must not cause the deterioration of natural or established runs
of anadromous fish, and prior to release into state waters, all
fish must be examined by a qualified pathologist to certify that
they are disease free. However, there are no provisions for
assessing water quality impacts or resolving use conflicts from
aquaculture operations.

    Massachusetts has no state-level finfish aquaculture leasing
law."2' Municipalities are authorized to issue shellfish
licenses for aquaculture operations on or above submerged lands,
and must be compatible with public uses and navigation.'26





     32  12 MRSA 6071-6074 (DMR Ch. 2).

     124 Aquiculture, RSA 211:62-e.

     125 The Director of the Division of Marine Fisheries is
authorized to issue permits for raising and harvesting finfish in
connection with aquacultural enterprises. MRSA 130:17B.

     126 MRSA 130:68A.

                               36








       3. Marine Sanctuaries

 5          ~~~Massachusetts is the only Gulf Of Maine state that has
       established offshore ocean sanctuaries. Maine and New Hampshire
       have not established a comparable mechanism for identifying or
       protecting areas of ecological significance in the marine
       environment.
            The Massachusetts ocean Sanctuaries Act3-27 creates five
I     ~~ocean sanctuaries covering all state offshore waters, with the
       exception of the area between Lynn and Marshfield. Within these
       sanctuaries, Massachusetts prohibits exploiting, developing,
       significantly altering, or endangering the ecology or appearance
       of the ocean, seabed or subsoil. The Act prohibits:
             -    the location of structures on the seabed or sub-
                  soil;
            -    offshore electric generating stations;
 I        ~~~- the drilling for or removal of oil, gas or miner-
                  als. Sand and gravel may only be removed for
  5              ~~~~shore protection or restoration projects; and

            -    the incineration and dumping of wastes (except for
                  municipal wastes if there are no feasible alterna-
                  tives, no harm to marine resources, the wastes are
                  pretreated, and a plan is implemented to control
                  combined sewer overflows). Discharges from exist-
                  ing facilities are permitted.


       4. Critical Areas

            Massachusetts, Maine and New Hampshire have each adopted
       programs for designating critical areas."'2 in Massachusetts,
       Areas of Critical Environmental Concern (ACEC) may include
       coastal areas, fishery habitats, estuarine wetlands, natural
       areas and sensitive inland areas. Special permits are not
5,     ~required for developments in ACECs, but stringent performance



 1          ~~~127 MGLA 132A:12A-18, 302 CMR 5.00, 310 CMR 9.27.

              1-8Massachusetts Areas of Critical Environmental Concern,
I       M~~GLA 21A:2(7) (301 CMR 12.00); The Maine Critical Areas and
       Endangered Plants Program, 5 MRSA 3310-3316; and the Mew Hamp-
       shire Areas of Particular Concern Program, a non-statutory
       program within the State's coastal program.

       1                               ~~~~~~~~~~~~37







standards are imposed under existing laws."'2 Scientific inf or-
mation is gathered within ACECs and all state or state regulatedI
or funded projects must be reviewed under the Massachusetts
Environmental Policy Act.
    Maine has adopted a non-regulatory Critical Area and Endan-
gered Plants Program that establishes a Register of Critical
Areas and Heritage coastal Areas."'3   The Maine Register of        
Critical Areas contains an inventory of sites containing plant
and animal life or geological features worthy of preservation,
and other areas of significant natural, scenic, historical or
scientific value.  Such areas are recommended for protectiona
through voluntary conservation agreements and state acquisition,
although the program contains no funds for acquisition. Prior to
designation, the property owners' consent must be secured and
they must also approve any protective measures taken.
    Heritage Coastal Areas are established in areas that contain
geological, botanical, zoological, historical, or scenic features
of exceptional state or national significance. The Heritage
Coastal Area Program, like the Critical Areas Program, is volun-
tary and relies on acquisition, conservation agreements withI
owners, and special considerations from government agencies for
protection. Although no funds for acquisition are provided,
Critical Areas and Heritage Coastal Areas receive priority
consideration under the Land for Maine's Future Program.
    The New Hampshire Coastal Program has established a non-
statutory program to designate Areas of Particular Concern (APCs)I
including, coastal and estuarine waters, tidal and freshwater
wetlands, floodplains, beach and sand dunes, rocky shores, unique
natural areas, the Port of Portsmouth, and the shoreline of Great
and Little Bay. APCs may require preservation by acquisition or
additional regulation if designated as "Areas for Restoration
Preservation." Three salt marsh areas totalling over 600 acres
have been so designated by the Great Bay Research Reserve Pro-I

    New Hampshire has enacted a Native Plant Protection Act and
Natural Heritage inventory,"3' prohibiting the unauthorizedI
taking of native plants found to be endangered, threatened, or of

     .129 For example, activities within ACECs that requireI
Chapter 91 licenses or wetlands permits must have "no adverse
impacts," and improvement dredging and the disposal of dredgedI
material is prohibited. In addition, ACEC waters are designated
"1SA"1 with strict antidegradation and discharge standards.

     1.30 5 MRSA 3310-3316.1

      11RSA 217-A:1-12 (NHAR RES-N 100-300).

                               38









special concern. These species may be placed on a Natural
Heritage Inventory. The destruction of species on the Inventory
located on public lands or the lands of another are subject to
civil and criminal penalties, although landowners are not prohib-
ited from removing listed plants from their property. Massachu-
setts protects endangered and threatened plant species under its
Endangered Species Act.'32 Maine is authorized to list endan-
gered and threatened plant species for informational purposes
under its Critical Area and Endangered Plants Program.133


5. Coastal Wildlife Protection

     Massachusetts, Maine and New Hampshire each have adopted
endangered species laws to supplement the federal Endangered
Species Act. Massachusetts authorizes the Division of Fisheries
and Wildlife to prepare a list of endangered and threatened
species, or species of special concern."' The list may include
fish, birds, mammals, reptiles, amphibians, or plants and cur-
rently includes some marine species (2 species of sturgeon and 6
species of whale).'35 Massachusetts recently substantially
strengthened its Endangered Species Law by providing for the
designation of "significant habitats" for the conservation of
threatened and endangered species.  The Director must certify
that any proposed alterations will not reduce the viability of
such habitats to support endangered or threatened populations.
Massachusetts has identified portions of Stellwagen Bank and Cape
Cod Bay as a special habitat for the endangered northern right
whale.

     Maine protects significant wildlife habitats, including
waterfowl, seabird, shorebird and salmon spawning habitats, under
the Natural Resource Protection Act,'36 and has also adopted an



     132 MGLA 131:26A (321 CMR 8.00-9.00).

     13 5 MRSA 3310-3316.

        Protection of Endangered Species of Wild Animals, MGLA
131:26A (321 CMR 8.00-9.00), as amended by Stat. 1990, c. 408.
The Division may also notify the Department of Environmental
Protection to take special steps to protect inland fishery
resources by preventing the discharge of wastes. MGLA 131:41-42.

     '3 Massachusetts also authorizes the acquisition and
designation of property owned by the Commonwealth as wildlife
sanctuaries, in which hunting, fishing, firearms, garbage dump-
ing, and fires are prohibited. MGLA 131:7-10 (321 CMR 7.00).
     313  38 MRSA 480 A-S (DEP Chs. 310, 343-345, 355).

                               39








endangered species law to designate threatened and endangeredI
species and protect essential habitats.137 The Commissioner of
the Maine Department of Inland Fisheries and Wildlife must
approve projects within essential habitats that require state orI
local government action to ensure that habitats are not altered
and that protections for designated species are not violated.

    Maine has no non-federally designated marine species on itsI
endangered species list, except two shore bird species (the least
tern and the piping plover). The roseate tern and 2 non-federal-
ly designated turtle species are listed as threatened.  MaineI
lists the golden eagle as well as the federally-designated bald
eagle as endangered. Maine currently has the only substantial
population of bald eagles in the northeastern United States, and
has mapped and protects eagle nesting sites from "significant
alterations and unreasonable harm."1138

    New Hampshire has adopted an Endangered Species Conservationj
Act to protect endangered and threatened wildlife species,
including marine mammals, but excluding other marine species."
The Act authorizes the State to initiate conservation programs to
protect endangered and threatened species including acquisition,
limitations on takings, restrictions upon boat traffic, and
agreements with other state, local and federal agencies.5


6. Coastal Acquisition and RecreationI

    Massachusetts, Maine and New Hampshire have a number of
programs that provide for the preservation and public use of
coastal property through acquisition and local government assis-
tance programs. In addition, Massachusetts and Maine have
adopted laws that encourage the recreational use of private
property by limiting landowner liability for the public use of
private land.
    The Massachusetts Coastal Facilities Improvement Program
provides assistance to towns to undertake harbor and waterfront
improvements or prepare harbor improvement plans.140 Grants may
be issued by the State Coastal Zone Management Office to fund 50%


    3.3 12 MRSA 7751-58 (DIF&W Ch. 8).

    Iss "Conservation of Inland Fisheries and Wildlife HabitatI
Maine Department of Inland fisheries and Wildlife, October 16,
1990, at 8.1

      3.9RSA 212-A:1-15 (NHAR Fis 1001).
    140 MGLA 21F:1-7 (301 CMR 22.00).3

                              40








       of local costs up to $2 million (funds were exhausted in 1987).
        Improvements must be used for public facilities for fishing,
I     ~~shellfishing, marine commerce, marine recreation or public
       access, but may not be used for dredging.
            The Massachusetts Self-Help Program provides assistance to
        local conservation commissions for 80% of the costs for acquiring
        land to protect natural resources and provide outdoor recre-
       ation. 141 In 1987, the State approved a $55 million bond to
        fund the program. However, applications submitted by cities and
       towns for the remaining $16 million in the Program are being
       returned because of the State's current fiscal crisis.'42
 I          ~~~Maine has no specific program for acquiring coastal property
       but has established a $35 million bond program to acquire land
       throughout the state for recreational and conservation purposes
I     ~~under the Land for Maine's Future Law.'143  The law establishes
       priorities for properties with high recreational and scenic
       values, undeveloped shorelands, wetlands, habitats for endangered
       or threatened plant and animal species, and lands that provide
       public access to recreational opportunities. The $35 million
       bond program is nearly exhausted and in 1990 the voters rejected
       a bond measure for an additional $18 million.

            141 MGLA 132A:ll (301 CMR 5.00, 7.00).

            1.42 "Funding cut curtails open-land program," Boston Globe,
       January 27, 1991 at 25. The article estimates that since 1962,
       the Program has spent $52 million to fund 1,124 projects in 231
       communities, preserving more than 37,000 acres of land and water.
       Id. at 27. In addition to the Self-Help Program, the Massachu-
       setts Division of Conservation Services designates conservation
I     ~~districts to establish educational programs and voluntary con-
       trols to preserve renewable resources, including fisheries and
       wildlife, erosion and flood controls, and water conservation.
       MGLA 21:18-25. The Division of Marine Fisheries and the Division
       of Fisheries and Wildlife are also authorized to acquire land to
       protect marine fisheries and wildlife. MGLA 130:17(8).

            14 5 MRSA 6200.
            14 Other state programs for acquiring lands for public
       recreation are administered by the Bureau of Public Lands (for
I     ~~public recreation, wildlife and timber); the Bureau of Parks and
       Recreation (for state parks); the Department of Economic and
       Community Development (for community parks and recreation pro-
I     ~~grams); and the Department of Inland Fisheries and Wildlife (for
       habitat restoration, particularly wetlands, and boat access).
       DIF&W currently manages over 16,000 acres of wetlands and has
       programs in place to purchase additional areas.

       5                              ~~~~~~~~~~~41









     Most of New Hampshire's shoreline is publicly-owned.'4I
The State has established a Land Conservation Investment Program
to acquire lands and interests in lands of statewide, regional,
and local conservation and recreation importance for preserva-
tion, protection and public access purposes."' These lands may
include aquifer recharge areas, watersheds, recreational lands,
areas of special scenic beauty, plant and wildlife habitats,
undeveloped shorelines, wetlands, flood storage areas and other
important open space and natural resource areas. The Program
establishes a trust fund for land acquisition. The Program is
scheduled to terminate in June 1993 unless renewed by the Legis-
lature.

     The Massachusetts Public Access Board is an interagency
board that designates areas to be acquired for public access to
great ponds and other waters as well as trails and paths for
snowmobiling, hiking, skiing or other uses.'47 Acquisition and
operation of such public access areas are chargeable to a Public
Access Fund. New Hampshire also has an interagency Right-of-Way
Board to implement the State's Right-of-Way to Recreational
Waters Law.148  The Law requires the Board to review all trans-
actions by state agencies to acquire or dispose of any land to
assure that rights-of-way to state waters for boating, bathing,
fishing, or other recreational uses are retained and provided.

     Massachusetts and Maine have also enacted laws that limit
the liability for landowners who allow the public use of their
land for recreational purposes.  In Massachusetts, owners are not
liable for injuries to persons or property while on their land
except for willful, wanton, or reckless misconduct, and owners
owe no duty to either licensees or invitees.'49

     Under Maine law, landowners, lessees or occupants owe no
duty of care to protect persons entering their land for recre-
ational or harvesting activities from injury due to the condition
of the premises; no duty to keep their property in a safe condi-
tion for the benefit of the public; and no duty to warn the



     .45 The New Hampshire Coastal Program notes that 78% of the
State's Atlantic shoreline is under public ownership and 60% of
the land within 1,000 feet of the shoreline is publicly owned or
managed.

     146 RSA 221-A:1-13.

        MGLA 21:17A.

     148 RSA 230:72-73.

        MGLA 21:17C.

                               42







I      ~~public about potential dangers on the property..'-5  The law
       encourages hunting, fishing, hiking, boating, swimming, clamming
       or simply going to the beach for recreational purposes. Liabili-
       ty protection is not afforded to owners who receive compensation
       or engage in willful or malicious conduct. Protected landowners
       who are sued and found not liable under these provisions are
I     ~~entitled to compensation from the plaintiff for their legal
       costs, including attorneys' fees.
            Persons who grant public access rights pursuant to New
       Hampshire's Land Conservation Investment Program are not liable
       for injuries suffered on those lands except for willful or wanton
*      ~~misconduct.
















 U~~~~-01 RA19A

       I~~~~~~~~~~~~4








 I          ~~IV.  IDENTIFICATION OF CONTRASTING APPROACHES


                             A. Common Approaches

 3          ~~~The States of Maine, Massachusetts and New Hampshire share a
        number of common approaches to regulating uses and activities
       that affect the coastal and marine resources of the Gulf of
*      ~~Maine.
             - each state has a comprehensive clean water law that clas-
             sifies coastal and inland waters, regulates discharges, and
 I         ~~~provides standards for the treatment of sewage.  Standards
             are coordinated through joint participation in the New
             England Interstate Water Pollution Control Commission;
              -each state has a comprehensive oil spill clean up and
             hazardous waste law that provides for strict and unlimited
 3          ~~~liability;
            - each state has a Nonpoint Source Management Plan under
            the federal Clean Water Act;
  I          - ~~~each state has comprehensive laws protecting coastal and
             freshwater wetlands, and sand dunes;
  I          -~~~each state has adopted a coastal management program under
             the federal Coastal Zone Management Act;
  3          -~~~each state has a program for protecting critical areas
             and endangered species; and
  3          - ~~~each state has programs to acquire open space and encour-
             age the use of private lands for recreational purposes.

     3                      ~~~~~~~B. Divergent Approaches

             Notwithstanding the common approaches noted above, standards
       vary substantially within state programs. In addition, individu-
       al states have undertaken unique regulatory programs to protect
       and preserve coastal and marine resources. In some cases, these
       special programs may provide models to facilitate the achievement
I     ~~of common goals and eliminate inconsistent standards.  Figure I
        identifies different approaches utilized by the States of Maine,
       New Hampshire and Massachusetts to regulate and protect the
I     ~~coastal and marine resources of the Gulf of Maine.




       I                               ~~~~~~~~~~~44











                             Figure 1
              Contrasting Approaches to Regulating
                    Gulf of Maine Resources


  State Approaches                               ME   NH   MA

  Shoreland Zoning                               X
  Comprehensive Planning                         X
  Subdivision Review                             X    X
  State Site Review                              X    X
  Regional and State Commissions                 X         X
  statutory Coastal Policies                     X
  EIR Requirements                                         X
  Marina Pump Out Requirements                   X         X
  100 Foot Septic System Setbacks                X         X
  Waste Oil Recycling                                      X
  Erosion and Sedimentation Controls             X    X
  Toxic Use Reduction Law                        X
  Acid Rain Control Law                               X
  Oil Terminal Contingency Plans                 X
  Oil Spill Drills                               X         X
  Vessel Boom Containment Requirements           X         X
  Offshore Mining Law                            X         X
  Small-Scale Freshwater Wetlands Law                 X    X
  100 Foot Wetland Buttffers                               X
  Sea Wall Prohibitions                          X         X
  Public Benefits for Tidelands Dev.             X         X
  Underwater Archeology Protection                         X
  Finfish Aquaculture Law                        X    X
  Critical Area Performance Standards                      X
  Ocean Sanctuary Law                                      X
  Endangered Species Habitat Protection          X         X


     Statewide Planning and Zoning Controls.  Only Maine has
adopted state-wide comprehensive planning, zoning and subdivision
laws that address coastal issues. These laws require municipali-
ties to: adopt zoning controls within 250 feet of shoreland areas
to protect coastal resources; prepare comprehensive plans and
zoning ordinances throughout their jurisdiction that reflect
coastal policies to manage growth and development, protect water
quality, and preserve critical natural resources; and review
subdivisions to protect wildlite and natural areas, public
access, water quality, and prevent soil erosion. Subdivisions
exceeding 20 acres are reviewed directly by the State.

     Maine's approach establishes a reasonable mechanism to apply
state-wide coastal policies at the local government level. It
does not divest local governments ot planning or zoning authority

                                45









       but provides minimum standards for protecting important resourc-
       es, which are implemented through local controls. This provides
I    ~a useful approach for addressing the cumulative impacts of
       development. It requires state oversight to assure that state
       standards are being properly implemented by local zoning boards,
       planning commissions and town councils. However, recent budget-
       ary problems may jeopardize the ability of the State to provide
       the necessary level of supervision.

            Regional and State Coimmissions. Massachusetts has estab-
       lished regional planning and regulatory commissions for Cape Cod
       and Martha's Vineyard to protect sensitive coastal resources,
       water quality, and to control growth. Maine has created a state
       commission (LURC) to plan for and regulate development within
3      ~~unincorporated areas, which include about 200 islands and 5% of
        te State's coastal zone. New Hampshire has not adopted the
       state commission approach. Establishing direct regulatory and
       land use controls over development within specially designated
       areas is a useful and effective mechanism for implementing state-
       wide policies to protect the marine and coastal environment."5'


 I          ~~~Coastal Policy Implementation.  Maine has enacted legisla-
       tion establishing nine coastal policies which must be considered
       in all state and local government regulatory and planning deci-
       sions. These policies promote public access, water dependent
       uses and the consideration of cumulative impacts; protect criti-
       cal resources; maintain and restore water quality; protect marine
       resources; and discourage development in hazardous areas. New
       Hampshire has non-statutory coastal policies while Massachusetts
       has both regulatory and non-regulatory coastal policies.

 3          ~~~Maine's approach has considerable advantages.  If properly
       implemented, the State's nine coastal policies must be considered
       by all local government bodies when issuing building permits,
       developing land use plans, enacting zoning ordinances, and
       approving subdivisions. State agencies must also consider these
       coastal policies when planning for and constructing highways,
       public utilities, sewage treatment facilities, harbor improve-
       ments, submerged lands and timber leases, and other state pro-
       jects. Non-statutory policies are generally less likely to be
       effectively enforced and rely to a greater extent on the persua-
3 ~~sive skills of state coastal management program offices.

            However, statutory policies by themselves are also not
3      ~~enough to ensure implementation of coastal policies.  Maine lacks

            3.53 It should be noted that the Cape and Vineyard commis-
       sions work with local governments while LURC was created because
I    ~~unincorporated areas in Maine lack local governments.

       3                               ~~~~~~~~~~~46







an effective mechanism to assure proper enforcement at the stateI
and local level. Guidelines and regulations describing how such
policies should be incorporated into state and local government
decision-making are also necessary.  Massachusetts has demon-        
strated how non-statutory coastal policies can be effectively
implemented by incorporating these policies into the State's
wetlands and tidelands leasing regulations.1

    State Site Review. Maine and New Hampshire provide for
state review of large-scale development and subdivisions.I
Maine's Site Law authorizes the State to review a broad range of
effects on natural resources, while New Hampshire's review is
generally limited to water quality impacts. Massachusetts does
not provide for state review of large scale development, exceptU
under its Environmental Policy Act.

    While grading, runoff, and sedimentation are likely to cause
some of the most serious impacts from large development, there
are a number of other impacts that should be and are considered
under Maine law; primary among these are impacts on open space.,
natural resources, wildlife habitats, sewage, and the consider-I
ation of the cumulative effects of development. State review of
large-scale development ensures that developments with the
largest potential impacts are properly evaluated. 

    Environmental Impact Assessment. Massachusetts has an
environmental impact assessment requirement to assure that
reasonable alternatives, cumulative effects and feasible mitiga-
tion measures are properly considered in reviewing development
that may have adverse impacts.  It closely resembles the NationalI
Environmental Policy Act, except that it applies to state and
state approved projects. To some extent, the Massachusetts
Environmental Policy Act serves as a state site review mechanism
because the State must certify that all feasible mitigation
measures have been taken to minimize the environmental impacts of
projects that require state approval.5
     Since Maine and New Hampshire have no EIR requirement, it is
essential that critical environmental information, mitigation
measures, and alternatives normally generated by an EIR areU
elicited through other state and local reviews. For example,
Maine provides a similar analysis through its Natural Resources
Protection Act, the Site Location of Development Act, the Land
Use Regulation Act, and the Comprehensive Planning and Land UseI
Regulation Law. Nevertheless, an environmental impact assessment
law is a sound mechanism for assuring the consideration of vital
environmental issues in state and local government decision-I
making, and ensuring effective interagency review and public
comment.

                              47








            Nonpoint Source Pollution. Each state Nonpoint Source
       Management Plan, adopted pursuant to Section 319 of the federal
I    ~Clean Water Act, indicates that measures need to be implemented
       to address comprehensively the impacts from nonpoint source
       pollution. Some of the most significant of these include erosion
       and sedimentation development controls (which have been imple-
I    ~mented on a state-wide basis by Maine and Mew Hampshire); under-
       ground storage tank regulation; road salt and sand controls;
       stormwater management; construction and septic setbacks from
I     ~~water bodies; waste oil recycling; agriculture and silviculture
       controls; and adequate enforcement of domestic subsurface dispos-
       al requirements. Because state NPS programs are evolving,
       evaluating the extent to which each state adequately controls NPS
I     ~pollution is beyond the scope of this Report.  This, however, is
       an important area for future study with regard to cooperative
       approaches among Gulf states, particularly in view of new coastal
I     ~~NPS pollution control requirements in the CZMA.

            Oil Spill Containment. While each state has enacted oil
I     ~~spill legislation, only Maine requires oil terminal facilities to
       prepare oil spill contingency plans and respond to unannounced
       state oil spill drills. Massachusetts has a state contingency
I     ~~plan for oil and hazardous material.  Maine and New Hampshire
       currently require that booms be deployed around vessels carrying
       oil when berthed at state ports.
 I          ~~~The new federal Oil Pollution Act will assure that states
       have consistent response measures including vessel and facility
       response plans, and local and regional contingency plans.
I     ~~Nevertheless, the Council may consider other measures such as
       improving vessel safety (using tugboats or pilots in certain
       ports); establishing minimum, worst case oil spill scenarios;
       setting uniform policies on the use of booms, skimmers,
       bioremediation and dispersants; mapping sensitive area and
       setting priorities for protection; and wildlife rehabilitation.
       The Council should consider the findings and recommendations of
       the Commission to Study Maine's Oil Spill Preparedness (November


 I          ~~~Offshore Mining.  Massachusetts and Maine have enacted laws
       that regulate offshore mining and establish procedures and
       standards for the extraction and development of offshore oil,
I     ~~gas, and minerals.  Maine, however, does not apply these proce-
       dures to offshore sand and gravel mining. Massachusetts prohib-
       its offshore mining and drilling for oil within designated ocean
       sanctuaries. In other areas, mining activities are prohibited
       from unreasonably impacting navigation, fishing and natural
       resources. Massachusetts has special provisions for controlling
       the adverse impacts of sand and gravel mining on shellfish and
       beach erosion.
       3                               ~~~~~~~~~~~~48








    The Massachusetts approach provides a useful model for
controlling the adverse impacts of ocean mining within especially
sensitive Gulf areas.

    Wetlands Regulation. All states protect coastal wetlands by
regulating alterations and development. However, only Massachu-
setts and New Hampshire regulate activities affecting small-scaleI
freshwater wetlands. Maine regulates only those freshwater
wetlands that exceed 10 acres; smaller wetlands are regulated by
local governments with some state oversight under Maine's newI
Comprehensive Planning and Land Use Regulation Act. Small-scale
wetlands are also regulated under Section 404 of the federal
Clean Water Act by the U.S. Army Corps of Engineers.3

    Buffer areas and "no net loss" standards vary substantially
from state to state. Massachusetts prohibits development within
100 feet of all wetlands (except freshwater wetlands of less thanI
5,000 square feet) and authorizes the protection of wetlands if
activities outside 100 feet alter wetlands. New Hampshire does
not prohibit development within buffer zones but does assert
jurisdiction over construction on steep slopes adjacent toI
wetlands, including small-scale wetlands. Maine regulates soil
disturbance "adjacent to" wetlands on a case-by-case basis and
requires adequate buffer zones to protect wildlife habitat andI
shoreland nesting and breeding. The size of the buffer zones are
not specified and they are applicable only to wetlands exceeding
10 acres. Maine requires local shoreland zoning controls that
prohibit development within 75 feet of coastal wetlands andU
freshwater wetlands exceeding 10 acres.

    New Hampshire's no "significant" net loss standards apply
only to "prime wetlands" mapped by local governments.  Maine's no
loss provisions apply to all coastal wetlands but only those
freshwater wetlands that exceed 10 acres. Massachusetts essen-
tially prohibits the destruction of all vegetated wetlands andI
wetlands habitat (except for freshwater wetlands less than 5,000
square feet).I

    According to recent estimates, Maine, New Hampshire and
Massachusetts together have lost over 1.6 million acres of
valuable wetlands since colonial times."'5 They can ill afford3

    152 Dahl, T.E. 1990. "Wetlands Losses in the United States,
1780's To 1980's,"1 U.S. Department of the Interior, Fish and
Wildlife Service, Washington, D.C. Dahl estimates that Maine has
lost 20% of its original 6.5 million acres of wetlands; Massachu-
setts has lost 28% of its 800,000 acres of wetlands; and New
Hampshire has lost 9% of its 220,000 acres of wetlands. The U.S
has lost over 30% of its wetlands since the 1780's; over 50% if
Alaska and Hawaii are not included.I

                              49









       to lose more. It may therefore be appropriate to consider uniform
       approaches to preserving wetlands and wetland habitats in the
I     ~~Gulf of Maine ecosystem by establishing "no net loss" policies,
       minimum development setbacks, uniform freshwater wetland size
       standards, wetland habitat policies, and wetland mitigation
I ~~policies."'5


            Coastal Erosion. Little planning for the effects of sea
       level rise has been undertaken in the Gulf of Maine. In Massa-
       chusetts, low lying areas vulnerable to rising sea levels have
       been mapped. Maine and Massachusetts have essentially prohibited
       the construction of sea walls. Massachusetts has also adopted
       stringent controls along coastal banks where construction can
       inhibit the natural movement of sediment to the shore and starve
       beaches of sand supplies. Both states strictly control erosion
       through development prohibitions on frontal dunes.
            These standards provide necessary controls to address the
       cumulative impacts of development that cut-off or impede the
       natural flow of sediment into the coastal environment. The
       effects of unregulated sea wall construction and sand dune
       development can result in the significant loss of beaches
       throughout the Gulf of Maine.

            Tidelands and Submerged Lands Leasing. Massachusetts
I     ~~Chapter 91 regulations provide significant public benefits for
       tidelands and submerged lands leases, even for projects located
       on filled tidelands or changes in uses. Maine is in the process
U     ~~of revising its leasing regulations which currently call for
       public benefits but do not specify how those benefits should be
       measured or provided.

            Recreational uses throughout the Gulf of Maine can be
       significantly enhanced through strong policies requiring public
       benefits in exchange for the reasonable use of public tidelands
I     ~~and submerged lands, consistent with appropriate environmental
       standards. The Massachusetts approach provides an outstanding
       model for strictly controlling non-water dependent uses within
I     ~~and adjacent to tidelands and submerged lands, protecting public
       recreational rights, and providing a significant degree of public
       access to coastal areas.




 ~~~~1.'3  For more detailed recommendations and analysis, see
       Kurland, "Habitat Mitigation Efforts in the Gulf of Maine:
       Stemming the Tide of Environmental Degradation," A Report to the
       Gulf of Maine Council on the Marine Environment, January 1991.
       3                               ~~~~~~~~~~~~50








    ocean sanctuaries.  Massachusetts has created five stateI
ocean sanctuaries within state waters within which the drilling
for oil and gas, seabed mining, and the incineration of wastes is
prohibited. Although Maine and New Hampshire control some of
these activities through ocean dumping, clean water and submerged
lands leasing laws, the designation of sanctuaries within state
waters is an appropriate approach to protecting special offshoreI
areas within the Gulf of Maine and would have significant symbol-
ic and public educational benefits. Ocean sanctuaries beyond
three miles from shore would require federal approval.3

    Endangered Species and Habitat Protection. Although Maine,
Massachusetts and New Hampshire have each adopted endangered
species laws, there appears to be some variation among the
species protected and habitat protection provisions. Ideally
there should be consistency among common endangered and threat-I
ened species listed by each state. In addition, the Maine and
Massachusetts laws require substantial state oversight with
respect to development affecting endangered species habitat. A
cooperative and consistent approach should be utilized within theI
Gulf of Maine ecosystem to protect endangered and threatened
species, and their habitats.3

                      C. New Approaches

    This report identifies many common and divergent approaches 
taken to regulate and manage the marine and coastal environment
within the U.S. jurisdictions bordering the Gulf of Maine,
However, there are other, new approaches that address marineI
resource issues that have not been utilized in the Gulf of Maine
which bear further consideration by the Council and the Gulf
states.

    Centralized Coastal Zone Management. It has been noted that
Maine, Massachusetts and New Hampshire have "networked" coastal
management programs; that is each state relies on a program of
networked laws and regulations for implementing their coastal
management policies on a state-wide basis.  These laws areU
implemented by a number of different state and local government
agencies and are "coordinated" through a non-regulatory coastal
management program office in the Executive department (the State
Planning office in Maine and New Hampshire, and the ExecutiveI
Office of Environmental Affairs in Massachusetts).

    In contrast to the "networked" coastal management approach,1
some states have development centralized coastal management
programs (North Carolina are California are two outstanding
examples). These programs have established state-wide "coastal3








       commissions," with special regulatory and land use planning
       functions throughout a specifically-defined coastal zone. These
I    ~coastal commissions are similar to the Cape Cod and Martha's
       Vineyard Commissions in Massachusetts and the Land Use Regulation
       Commission in Maine, except that "coastal commissions" have
3 ~~state-wide coastal authority.
            Coastal commissions provide a distinct advantage over the
       networked coastal management program approach by establishing an
       effective mechanism to implement state-wide coastal policies,
       rather than scattering such policies among several different
       agencies and levels of government. Coastal commissions, with
       members usually appointed by the Governor and State Legislature,
       can implement state-wide planning and zoning controls within the
       coastal zone, conduct site reviews, issue coastal development
       permits, and implement state-wide coastal policies in a coordi-
I     ~~nated fashion.  Centralized coastal programs provide a mechanism
       for assuring that local government permit and land use decisions
       in the coastal zone reflect broader state-wide interests.
       Finally, centralized coastal programs concentrate state marine
       and coastal resource expertise and resources within one agency,
       providing administrative efficiencies and creating a special
       constituency within state government for the coastal and marine
       environment.
            Ocean Resource Plans. Congress recently noted that, "coast-
       al states have substantial and significant interests in the
       protection, management and development of the resources of the
       exclusive economic zone."...   For this reason, Congress autho-
I     ~~rized funds to encourage the development of state ocean resource
       plans as part of federally approved coastal management programs.
       This gives federal recognition to state planning efforts beyond
I     ~~the 3-mile state boundaries established under the Submerged Lands
       Act.
            A number of states are adopting or already have adopted
       ocean resource plans to address various ocean resource management
       issues affecting state coastal waters.1-55 Although these plans

  1         154  ~~1990 Amendments to the CZMA, section 6203.   16 USC
       1451(m).
 I          ~~~155  Ocean resource plans have been prepared in Hawaii (the
       Hawaii Ocean Resources Management Plan, Act 235, SLH 1988); Oregon
       (the Oregon Ocean Resources Management Act, ORS 196.405-196.515);
       North Carolina (the North Carolina Marine Science Council, "North
       Carolina and the Sea: An Ocean Policy Analysis," 1985 and NCGS
       143B-389); Florida ("Florida's Ocean Future: Toward a State Ocean
       Policy," 1989); Washington (the Ocean Resources Management Act of
                                                           (continued...)
       3                               ~~~~~~~~~~~52







are as unique as their ocean features and resources, they have 
some common features. The plans generally summarize and describe
the policies and laws applicable to their ocean coastal waters;
describe state management responsibilities with respect toU
federal resource management agencies; describe key ocean uses,
activities and resources that affect state environmental, recre-
ational, and economic interests; and list objectives and recoin-
mendations for state action to preserve and develop vital marineI

    While states may have addressed many of these issues within
their 3-mile coastal jurisdiction, until recently most states
have not considered in a comprehensive fashion strategies and
policies to protect their interests within federal waters and the
exclusive economic zone.  Among the most important of theseI
interests, depending on the ocean areas considered, include
offshore mineral mining and oil and gas development; oil spills;
kelp harvesting; new ocean energy technologies; marine transpor-I
tation; ocean waste disposal; commercial and recreational fisher-
ies; ocean recreation; marine research; interjurisdictional
cooperation. ocean management planning presents substantial
benefits for establishing an ecosystem approach to managing oceanI
resources and in many respects parallels the Gulf of Maine Action
Plan being developed by the Gulf of Maine Council on the Marine
Environment.I

    Outstanding Resource Waters. Maine, Massachusetts, and New
Hampshire have adopted classification systems for marine watersI
based upon water quality standards and the uses to which those
waters may be put pursuant to EPA's anti-degradation policy.
However, they have not taken the supplemental step of designatingI
high quality coastal waters for additional and enhanced
protections. In North Carolina, these waters are called, "out-
standing resource waters." (ORW)'-56
    Outstanding resource waters may be utilized to classify
waters of excellent water quality and exceptional recreational or
ecological value such as waters with outstanding fish habitats orI
fisheries, high- recreational uses or potential, special designa-
tions (such as wildlife refuges or national parks), or special



1989, RCW 43.143 and 90.58.195); and California (the CaliforniaI
Ocean Resources Management Act of 1990, AB 2000).  See Coastal
Management, Volume 18, No. 3 (1990), which contains articles about
the experience of each of these states in developing policies andI
institutions to manage ocean resources.
    1FIA 15 NCAC 2B.0201.3

                              53







        ecological or scientific significance. ORWs may be given special
        protection through statutory or regulatory standards, management
I     ~plans and expanded permitting requirements.   In North Carolina,
        new development adjacent to ORWs must comply with special storm-
       water controls, dredge and fill and discharge permits, and
        restrictions on marina construction through site specific regula-
        tory mechanisms."'5 These mechanisms can also be utilized to
        provide additional protection for waters within the Gulf of Maine
3       ~~which are determined to possess exceptional values.














 ~~~~~,5 e lo atr Ottnin g R s uc                       aesCasfi
~~tinPoidsPoetofoN..CatlWtr,4LglTis
~~No3,a24   19)NotCaoinrentydsgadth
~~RoeetNtrlAeanBueBnsin  atrtCut  sa
~~~ottnincosareucewt.

        I~~~~~~~~~~~~5








     I                      ~~~~~V.  RECOMMENDATIONS

            The following initial recommendations propose regulatory and
I    ~management options for protecting the natural resources of the
       Gulf of Maine. They evaluate the similarities and differences of
       U.S. state and federal laws that affect the marine environment of
I     ~the Gulf and identify state-of-the-art management practices.  The
       recommendations are "preliminary" in the sense that they have not
       been coordinated with corresponding Canadian federal and provin-
       cial laws. Additional options and recommendations to the Council
       will be made upon completion of a similar analysis of Canadian
       laws and a comparison of U.S. and Canadian regulatory systems.

 I          ~~~These recommendations are listed in the order in which they
       were discussed in the report and are not prioritized. It is
       recommended that the Council establish an agenda for action based
       upon priorities consistent with the Gulf of Maine Action Plan and
       the urgency with which the Council views the affected resources.
       Thus, the Council may want to take immediate steps to implement
       recommendations involving point source reductions, endangered
I     ~~species and habitats, and wetlands protection, before undertaking
       measures that require institutional changes or new governmental
       structures. In many cases, additional studies and investigations
I     ~~should be commissioned by the Council (such as the one prepared
       on "Habitat Mitigation") to implement recommendations where key
       scientific issues must be resolved, including best management
       practices for pollutant controls, optimal wetland protection
I     ~~strategies, the designation of outstanding resource areas in the
       Gulf, and others.


            1. Regulatory, planning and zoning controls should be
           established within the coastal zone and should reflect
            state-wide coastal management policies through effective
            implementation strategies.

            Although each of the Gulf states have coastal management
       policies, it has been noted that these policies are not always
       effectively implemented at the state and local level. These
       policies contain laudable goals (such as protecting marine water
       quality, increasing public access, protecting water dependent
        ues, assessing environmental impacts, and considering the
U     ~~usuatv impacts of coastal development), but often lack ade-
       quate statutory and regulatory status, and require additional
       implementing measures. Such measures may include creating
       regional commissions or state-wide coastal commissions to direct-
       ly administer state-wide coastal policies. Implementation of
       state-wide coastal policies may also be secured at the local


                                       55








level through state review of local comprehensive plans and3
zoning requirements.1"'

    2.  Large-scale coastal development should undergo spe-1
   cial state site review for impacts on water quality,
    storiuwater runoff, erosion, and impacts on natural re-
    sources.

    Large development projects pose special environmental prob-5
lems; they also present unique opportunities to implement innova-
tive mitigation measures. A process for subjecting large-scale
development to special state site review and permitting require-3
ments, beyond those normally implemented at the local level, can
effectively implement state-wide water quality and natural
resource policies."'9 


    3. Ocean dumping and mining provisions should be coor-
    dinated to address and mitigate regional and trans-
    boundary impacts of potentially harmful activities onI
    the Gulf of Maine resources.

    State ocean dumping and mining provisions vary significant-
ly.160 While ocean mining and dumping activities are prohibited
throughout Massachusetts' ocean sanctuaries, they may be permit-
ted in areas offshore Maine and New Hampshire.  Offshore sand andI
gravel mining and offshore oil and gas development permitted in
some areas may affect adjacent jurisdictions. A more detailed
evaluation of these dumping and mining provisions is necessary toI
determine how to address and mitigate transboundary impacts on
marine resources.

    4. A uniform marine monitoring program in the Gulf
    should be implemented to identify transboundary impacts
    of ocean and coastal activities on marine resources andI


    There has been a lack of adequate and reliable information
and data on marine water quality within the Gulf of Maine. A


    1-58 See pages 15-16, 45-47 and 51-52.

      3-9See pages 17-18.3

    16  See pages 18-19, 28-29, and 48-49.ï¿½

                             56








       uniform marine monioring program, coordinated through an
       interjurisdictional body like the New England Interstate Pollu-
       tion Control Commission or the Council, could develop the neces-
       sary data to discern and address the impacts of point and
       nonpoint source discharges and other activities on the Gulf's
       water quality and marine resources."

            5. cooperative measures to reduce pollution from ves-
 I        ~~~sels should be implemented.

            The Clean Water Act prohibits the discharge of untreated
I     ~~sewage from marine sanitation devices and MARPOL prohibits the
       discharge of marine debris from vessels."'6 However, there are
       substantial enforcement problems and even chlorinated discharges
I     ~~from vessel holding tanks may have adverse impacts.  These
       problems can only be addressed by effective enforcement and state
       laws requiring the availability of pump out facilities at mari-
*      ~~nas.

             6. Marine resource impacts from septic systems should
             be addressed by uniform minimum septic setback stan-
             dards and the prohibition of direct domestic
             wastewater discharges into the Gulf.


             Pollution from septic systems throughout the Gulf is evi-
       dent. States have adopted different approaches with respect to
I     ~~minimum standards for setbacks from water bodies, minimum lot
       sizes and shoreline frontages, and municipal sewer hook-up
       requirements. Policies are inconsistent with respect to existing
        systems that discharge directly into water bodies."'3 Uniform
1      ~~policies should be considered that provide minimum acceptable
       standards for dealing with pollution from septic systems in the
3      ~~Gulf of Maine.





 3~         ~~ 1613  See page 23.   This recommendation is consistent with
       objective 2.0 of the Gulf of Maine Action Plan to establish a Gulf
       Marine Environmental Qulaity Monitoring Program and objective 1.1
I     ~~to assist in the reduction of point sources of polution.
            .1 62See pages 6 and 19-20.

  I          '~~~~ See pages 21-22.

       I                               ~~~~~~~~~~~57









    7.  Specific state nonpoint source pollution management 
    strategies should be implemented through statutory and
    regulatory controls.3


    Each state has adopted a NPS Management Plan under the Clean
Water Act to protect and improve water quality.'64 However,
many of the strategies in these plans are not mandatory. Gulf
waters are substantially affected by NPS pollution and steps must
be taken to assure that NPS strategies and best management
practices are effectively implemented. Studies should be under-
taken to assess the implementation of mandatory NPS pollution
controls and the adoption of specific measures such as: state-
wide erosion and sedimentation controls; enforcement of septic       
system regulations; restrictions on fertilizer use; waste oil
recycling; road salt and sand controls; stormwater management
programs; construction setbacks from water bodies; and agricul-
ture and silviculture controls.

    8.  A coordinated, interstate approach to oil spillI
    prevention and response in conjunction with existing
    state and federal laws should be implemented through
    interstate cooperation.I

    The transboundary effects from oil pollution are readily
apparent. To minimize risks from accidents and to facilitate
clean-up operations, consistent policies should be endorsed
regarding state oil spill response plans; vessel and facility oil
spill contingency plans; unannounced oil spill drills and inspec-I
tions; the use of dispersants; financial responsibility require-
ments; vessel safety procedures (such as the use of tugboats,
pilots, and booms within port areas); sensitive habitat mapping
and planning; bioremediation; and the rehabilitation of wild-I



     1-64 See pages 23-25 and 48.
     1-65 Seepages 26-28, and 48.  See also objective 1. 6 of theI
Gulf of Maine Action Plan, calling for the review of individual
oil spill contingency plans to identify areas of similarity and
difference and devise methods for improved cooperation.  In thisI
regard, the Council should consult the findings and recommenda-
tions of the November 1990 Report of the Commission to Study
Maine's Oil Spill Cleanup Preparedness.  Among its recommenda-ï¿½
tions is the execution of an interstate, interprovince compact to
improve oil spill prevention and response throughout the Gulf of
Maine.  See supra note 92.3

                              58









           9. consistent wetland standards and "no net loss"
           wetland policies should be implemented throughout the
           Gulf of Maine.

 3          ~~~The protection of wetlands is essential in preserving the
       Gulf's ecosystem. Each state has its own set of wetlands laws
       with different wetland standards. Substantial benefits would
       accrue from a uniform approach to preserving wetlands and
       wetlands habitats such as establishing minimum construction
       setbacks, preserving small-scale freshwater wetlands, establish-
       ing wetland habitat protection-policies, and assuring that
       wetland mitigation programs are not utilized to justify the
       destruction of existing wetlands and wetland habitats.'66


 3         ~~~10.  Regulatory and planning strategies for dealing with
           sea level rise should be examined; development within
           sand dunes and along coastal bluffs and the construction
           of sea walls should be prohibited (except for public


 U          ~~~Gulf states should jointly plan for and take steps to
       anticipate the effects of sea level rise. Sea wall construction
       and development on sand dunes deprives the marine environment of
I     ~~sediment and can lead to the significant loss of beaches and
       create hazardous conditions throughout the Gulf of Maine exacer-
       bating the effects of rising sea levels. Gulf states should re-
I     ~~strict the construction of sea walls and the armoring of coastal
       bluffs to alleviate the individual and cumulative effects of such
       development on Gulf sand supplies."1"7






  3         166 ~~See pages 30-33 and 49-50.  For more specific recommen-
       dations see Kurland, "Habitat Mitigation Efforts in the Gulf of
       Maine," supra notes 30 and 106, at 49-55. The Report notes that
       there is a special need for interjurisdictional coordination and
       cooperation regarding wetland habitat and management efforts
       within the Gulf of Maine (at 46). It recommends that specific
       definitions be adopted for mitigation and habitat value assess-
       ment, and that guidelines for local implementation be prepared

  3         167 ~~See pages 32 and 50.

                                       59










   11. Public benefits should be provided and water depen-
   dent uses should be protected on state tidelands andU
   submerged lands, including filled tidelands.

    The private use of public tidelands and submerged lands are
permitted to varying degrees under submerged lands leasing
laws."'8 A commitment to require public benefits for the use of
public resources would assure that the Gulf of Maine remainsU
accessible to the public. These public benefits should include
public access to Gulf waters for fishing, fowling, navigation and
recreational purposes; public access to marinas; and protectingI
public uses on filled as well as flowed tidelands. Such laws
should also be used to protect commercial fishing and marine
facilities from being displaced by non-water dependent uses.

   12. Underwater archeological resources should be pro-
   tected.I

    Only one state in the Gulf of Maine currently has legisla-
tion regulating the exploration, removal and salvage of underwa-I
ter archeological resources. Massachusetts has created a state
commission and staff to issue excavation and reconnaissance
permits, oversee exploration and salvage operations, maintain anI
inventory of reported and recovered items, and protect the public
interest."'9 Similar programs should be adopted to assure that
the Gulf's historical and archeological resources are adequatelyI
protected.

    13.  Ocean sanctuaries and outstanding resource designa-I
   tions should be established, to protect sensitive areas
   of the Gulf.3

    Although the federal government has designated national
estuaries and estuarine reserves within the Gulf of Maine,"'7 and
Massachusetts has established state ocean sanctuaries,"'7 none of

    1.68 See pages 33-35 and 50-51.I

      19Seepage 35.3
    1.70 See pages 10-11.

    I171 Seepage 37.3

                             60








       none of the states have established special regulatory and
       management controls for outstanding resource waters. Critical
       coastal areas or areas with significant habitats should be
       identified and protected through performance standards, regulato-
       ry controls, and management plans to provide special protection
       to especially sensitive areas within the marine and coastal envi-
       ronment.172 The Council should identify where such areas are
        located within the Gulf.

 1         ~~~14.  The identification and protection of common endan-
            gered and threatened marine and plant species, and their
            habitats, should be coordinated to assure that standards
            for protecting such species and habitats are consistent-
            ly applied within the Gulf of Maine.


 3          ~~~There appear to be some variations among the endangered
       species laws of the Gulf states, particularly with respect to
       habitat protection."'7 These variations may undermine species
I     ~~and habitat protection efforts in adjacent jurisdictions.
       Further study and action is necessary to assure that a consistent
*      ~~approach to species and habitat protection is implemented.

            15. Cooperative mechanisms for state coastal land ac-
            quisition programs should be explored to protect signif-
            icant Gulf habitats, species, and recreational resourc-


            The states of the Gulf of Maine have a number of land
       acquisition and assistance programs to provide open space and
       recreational opportunities within coastal areas bordering the
I     ~~Gulf of Maine. 1741 However, fiscal restraints and development
       pressures require additional measures. The Council should
       consider joint programs and innovative approaches for securing
I     ~~funds, increasing public awareness, and designating areas of the
       Gulf that are appropriate for open space programs.





 3          ~~~172  See pages 50 and 53-54.

            1.7 See pages 39-40 and 51.
 ~~~~3       174  See pages 40-43.



I

I

I

I

I

I APPENDICES
I

I

I

I

I

I
I

I
I

I

I
I

I









                     APPENDIX A: PERSONAL COMMUNICATIONS


I      ~Massachusetts

             Eben Chesborough, Division of Water Pollution Control,
  I            ~~~~Massachusetts Department of Environmental Protection.

            John Felix, Division of Wetlands and Waterways,
                  Massachusetts Department of Environmental Protection.

            Patricia Hughes, Massachusetts Coastal Zone Management
  *              ~~~~Office.

            Mary Kingsley, Massachusetts Coastal Zone Management Office.

 3          ~~~Phillip Mallard, Massachusetts Department of Environmental
                  Protection.

I      ~~New Hampshire

            Rick Barry, Water Supply and Pollution Control Division, New
  I            ~~~~Hampshire Department of Environmental Services.
            Don Chesborough, Water Supply and Pollution Control
                  Division, New Hampshire Department of Environmental
                  Services.
 5          ~~~David Hartman, New Hampshire office of State Planning.

             Peter Helm, New Hampshire Office of State Planning.

            E. Ann Poole, Water Supply and Pollution Control Division,
  I            ~~~~New Hampshire Department of Environmental Services.

            Mary Ann Tilton, Wetlands Bureau, New Hampshire Department

                  of Environmental Services.

*      ~~Maine

            Richard Baker, Shoreland Zoning, Maine Department of
  3              ~~~~Environmental Protection.

            Matthew Bley, Bureau of Public Lands, Maine Department of
                  Conservation.

 I          ~~~John Catena, Maine State Planning Office.

 5          ~~~Laurice Churchill, Maine Department of Marine Resources.


                                       63








Donald Hague, Maine Department of Environmental Protection.I

David Keeley, Maine State Planning Office.5

John Sowles, Water Quality Control, Maine Department of
    Environmental Protection.

Melissa Waterman, Maine State Planning Office.I





















                                64~~~~~~~










            APPENDIX B:  LIST OF FEDERAL LAWS


Regulated Activities

 A.  Development

      1. Planning and Zoning Controls



      2. Coastal Management

      -   Coastal Zone Management Act (16 USC 1451-1464)

      3.  Coastal Facilities Site Review



      4.  Environmental Impact Assessment

      -   National Environmental Policy Act (42 USC 4321-
          4347)

 B. Water Quality Control

      1.  Ocean Dumping

      -   Ocean Dumping Act (33 USC 1401-1445)

      2.  Discharge From Vessels

      -   Act to Prevent Pollution from Ships (MARPOL) (33
          USC 1901-1912)

      -   The Clean Water Act, Marine Sanitation Devices (33
          USC 1322)

      -   Shore Protection Act (33 USC 2601-2623)

      3.  Point Source Pollution

      -   Section 403 of the Clean Water Act (33 USC 1251-
          1387) (NPDES)

      4. Non-Point Source Pollution

      -   Section 319 of the Clean Water Act (33 USC 1329)

      -   1990 Amendments to the Coastal Zone Management Act
          (16 USC 1458(a)-(h))


                           65









C.  Hazardous Wastes

     -   The Comprehensive Environmental Response,
         Compensation, and Liability Act (Superfund) (42 USC
         9601-9675)

     -   Port and Waterways Safety Act (33 USC 1221-1236)

D. Oil Spill Prevention

     -   The Oil Pollution Act [Pub. L No. 101-380, 104
         Stat. 484 (1990)]

E.  Offshore Oil/Gas/Mineral Development

     - Outer Continental Shelf Lands Act (43 USC 1331-1356,
        1801-1866)

     - Deep Seabed Hard Minerals Resources Act (30 USC
        1401-1473)


Protected Areas

A.  Coastal Wetlands and Sand Dune Protection

     -  Section 404 of the Clean Water Act (33 USC 1344)

     - Coastal Barrier Resources Act (16 USC 3501-3510)

     - North American Wetlands Conservation Act (16 USC
        4401)

B.  Tidelands/Submerged Lands Management

     - Rivers and Harbors Appropriation Act (33 USC 401-
        687)

     - Submerged Lands Act (43 USC 1301-1315)

     -  Abandon Shipwrecks Act (43 USC 2101-2106)

C. Marine Estuaries and Sanctuaries

     - Marine Sanctuaries Act (16 USC 1431-1439)

     - National Estuary Program (33 USC 1330)

     -  National Estuarine Reserve Research System (16 USC
        1451)



                          66









Critical Coastal Areas



Coastal Wildlife Protection

 -  Endangered Species Act (16 USC 1531-1543)

 - Marine Mammal Protection Act (16 USC 1361-1407)

 -  Fish and Wildlife Coordination Act (16 USC 661-667)

Coastal Acquisition Programs

 - Land and Water Conservation Fund (16 USC 460 (1-11))








































                      67










        APPENDIX C:  LIST OF MASSACHUSETTS LAWS


Regulated Activities

A.  Development

      1. Zoning

      -   The Cape Cod Commission (Stat. 1989, c. 716) and
          the Martha's Vineyard Commission (Stat. 1974, c.
          637, as amended by Stat. 1977, c. 831)

          [No coastal policies in the Municipal Planning
          and Subdivision Control Law (MGLA 41:81) and the
          Massachusetts Zoning Act (MGLA 40A:1-15)]

      2.  Coastal Facilities Site Review

      -   Energy Facilities Siting Law (MGLA 164:69G-S, 980
          CMR 1.00-11.00)

      -   Massachusetts Coastal Management Policies (MGLA
          21A:4A, 301 CMR 20.00-22.00)

      -   Northeastern Water and Related Land Resources
          Compact (MGLA 91 App:4-1, 4-2)

      3. Environmental Impact Assessment

      -   Massachusetts Environmental Policy Act (MGLA 30:61-
          62H, 301 CMR 11.00)

 B.  Pollution Control

      1. Ocean Dumping

      - Dredged Material Disposal and Filling in Waters
          [MGLA 21:27(12), 21:42, 21A:14, 91:52-56, 314 CMR
          9.00, 310 CMR 9.25-26, 9.40]

      2.  Discharge From Vessels

      -   Licensing of Marinas (MGLA 91:59B, 310 CMR 9.39)

      3. Point Source Pollution

      -   Massachusetts Clean Water Act (MGLA 21:27-48,
          310 CMR 41.00, 314 CMR 3.00-4.00, 10.00-14.00)

      -   Subsurface Disposal of Sanitary Sewage (MGLA
          21A:13, 111:17, 310 CMR 11.00, 15.00)

                           68









    -   Land Application of Sludge and Septage (MGLA 21:43,
         310 CMR 32.00)

    -   New England Interstate Water Pollution Control
         Compact (MGLA 21 Appendix:l-5)

    4.  Non-Point Source Pollution

    -   Massachusetts Nonpoint Source Management Plan
         (1989)

C.  Hazardous Wastes

     - Massachusetts Oil and Hazardous Material Release
        Prevention and Response Act (MGLA 21E:1-18, 310 CMR
        40.00)

     -  Massachusetts Hazardous Waste Management Act (MGLA
        21C:1-14, 310 CMR 30.00, 314 CMR 8.00)

     -  Nuclear Power and Waste Disposal Voter Approval and
        Legislative Certification Act (MGLA 164 App. 3(1-9))

        [No coastal policies in the Massachusetts
        Hazardous Waste Facility Siting Act (MGLA 21D:1-17)
        and the Massachusetts Toxic Use Reduction Act (MGLA
        21I:1-23)]

 D.  Oil Spill Prevention

     - Oil Terminals, Pollution Prevention [MGLA 21:27(14),
        50-50B, 91:59-59A, 314 CMR 15.00]

E. Oil/Gas/Mineral Development

     -  Mineral Resources (MGLA 21:54-56, 310 CMR 29.00)

Protected Areas

A. Coastal Wetlands and Sand Dune Protection

     - Massachusetts Wetlands Protection Act (MGLA 131:40-
        45, 310 CMR 10.00)

     - Protection of Coastal Wetlands (MGLA 130:105, 302
        CMR 4.00) 

     - Inland Wetlands Restriction Act (MGLA 131:40A, 302
        CMR 6.00)

     - Executive Order 181 Prohibiting State Investment on
        Barrier Beaches

                          69










B. Tidelands/Submerged Lands Management

     -  The Massachusetts Public Waterfront Act (MGLA 91:1-
        63, 310 CMR 9.00)

     - Underwater Archeological Resources Act (MGLA 6:179-
        180, 312 CMR 2.00)

     - Aquaculture Licenses (MGLA 130:17B and 68A, 322 CMR
        7.01)

C. Marine Estuaries and Sanctuaries

      -  Massachusetts Ocean Sanctuaries Act (MGLA 132A:12A-
        18, 302 CMR 5.00, 310 CMR 9.27)

D.  Critical Coastal Areas

     - Massachusetts Areas of Critical Environmental
        Concern (MGLA 21A:2(7), 301 CMR 12.00)

      - Scenic and Recreational Rivers (MGLA 21:17B, 30A:2-
        3, 302 CMR 3)

E. Coastal Wildlife Protection

     - Wildlife Sanctuaries (MGLA 131:7-10, 321 CMR 7.00)

      - Protection of Fish from Discharges (MGLA 131:41-42)

     -  Protection of Endangered Species of Wild Animals
        (MGLA 131:26A, 321 CMR 8.00-9.00, as amended by
        Stat. 1990, c. 408)

        [See Wetlands Protection Act at MGLA 131:40 for
        protection of wildlife habitat]

F.  Coastal Acquisition and Assistance Programs

     - Coastal Facilities Improvement Program (MGLA 21F:1-
        7, 301 CMR 22.00)

     - Public Access Board and Fund (MGLA 21:17A)

     -  Self-Help Program (MGLA 132A:11, 301 CMR 5.00, 7.00)

     - Limited Liability for Public Use of Land for
       Recreational Purposes (MGLA 21:17C)

    - The Division of Marine Fisheries [MGLA 130:17(8)]

     -  Division of Conservation Services (MGLA 21:18-25)

                          70









             APPENDIX D:  LIST OF MAINE LAWS


Regulated Activities

A. Development

      1. Zoning

      -   Mandatory Shoreland Zoning Act (38 MRSA 435-447,
          DEP Ch. 1000)

      -   Comprehensive Planning and Land Use Regulation Act
          (30-A MRSA 4311-4344, DECD Chs. 200-202)

      -   Subdivision Law  (30 MRSA 481-490)

      -   Land Use Regulation Act (12 MRSA 681-689, LURC Ch.
          10)

      2. Coastal Facilities Site Review

      -   Site Location of Development Act (38 MRSA 481-490,
          DEP Chs. 372-376)

      -   Coastal Management Policies (38 MRSA 1801-1803)

      3. Environmental Impact Assessment



 B.  Pollution Control

      1.  Ocean Dumping

          (See Protection and Improvement of Waters Act and
           Natural Resources Protection Act)

      2.  Discharge from Vessels

      -   Monofilament Nets  (12 MRSA 6522)

          [See watercraft wastes under Protection and
          Improvement of Waters]

      3.  Point Source Pollution

      -   Protection and Improvement of Waters (38 MRSA 361-
          434, 464-470, DEP Chs. 514-596)

      -   Interstate Water Pollution Control (38 MRSA 491-
          537)

                           71










     -   Waste Management (38 MRSA 1301-1310B, DEP Chs. 420,
         567)

     4. Nonpoint Source Pollution

       -   State of Maine Nonpoint Source Management Program

       -   Lake and Coastal Watershed Districts (38 MRSA 2001-
         2022)

C. Hazardous Wastes

     - Hazardous Matter Control Law (38 MRSA 1317-1319,
        1361-1371, 1401-1404, DEP Chs. 800-860)

     -  Toxic Use Reduction Law (38 MRSA 2301-2312)

     - Disapproval of High Level Radioactive Waste
       Repository (38 MRSA 1461A-1466)

     -  Low-Level Radioactive Wastes (38 MRSA 1471-1542)

D. Oil Spill Prevention and Liability

     - Oil Discharge Prevention and Pollution Control (38
        MRSA 541-560, DEP Chs. 600-680)

E. Oil/Gas/Mineral Development

     -   Mining on State Lands (12 MRSA 541-550)

Protected Areas

A.  Coastal Wetlands and Sand Dune Protection

     - Natural Resources Protection Act (38 MRSA 480 A-S,
        DEP Chs. 310, 343-345, 355)

     - Coastal Barrier Resource System Law (38 MRSA 1901-
        1905)

B. Tidelands/Submerged Lands Management

     - Submerged Land Leasing Law (12 MRSA 558-573, DOC BPL
        Ch. 3)

     - Aquaculture Leasing Act (12 MRSA 6071-6074, DMR
        Ch. 2)

     - Closure of Contaminated or Polluted Flats (12 MRSA
        6172, 6621, DMR Ch. 23)

                          72









         C.  Marine Estuaries and Sanctuaries



         D. Critical Coastal Areas

              - Critical Areas and Endangered Plants Program (5
                 MRSA 3310-3316)

         E.  Coastal Wildlife Protection

              - Endangered Species Law (12 MRSA 7751-7758, DIF&W Ch.
*                8~~~~)

                 [See also Natural Resources Protection Act]

         F.  Coastal Acquisition and Assistance Programs

              - Land For Maine's Future Law (5 MRSA 6200, Strategy
                 and Guidelines for Acquisition)

              - Limited Liability for Recreational or Harvesting
                 Activities (14 MRSA 159-A)































                                   73










            APPENDIX E: LIST OF NEW HAMPSHIRE LAWS


I.  Regulated Activities

    A. Development

          1. Zoning



          2. Coastal Facilities Site Review

          -   N.H. Coastal Management Policies (1982)

          -   Energy Facility Evaluation, Siting, Construction
              and Operation (RSA 162-H:1-16, NHAR Ener. 100-400)

          -   Northeastern Water and Related Land Resources
              Compact (RSA 484:13-16)

          3. Environmental Impact Assessment

          -   Council on Resources and Development (RSA 162-C:1-
              5)

B.  Pollution Control

          1. Ocean Dumping

              [See Water Discharge Permits and Dredge and Fill in
              Surface Waters under Water Pollution and Waste
              Disposal]

          2.  Discharge From Vessels

          -   Marine Toilets and Disposal of Sewage from Boats
              (RSA 487:1-14)

          3. Point Source Pollution

          -   Water Pollution and Waste Disposal (RSA 485:27-30,
              485-A:1-54, 486:1-18, NHAR Ws and Env-Ws 403, 415-
              439, 600-1000)

          -   Water Protection Assistance Program (RSA 4-C:19-23,
              NHAR PLN 100-600)

          -   N.E. Interstate Water Pollution Control Compact
              (RSA 484:17-26)

          4.  Non-Point Source Pollution

                               74










             New Hampshire Nonpoint Source Management Plan
             (1989)

            Acid Rain Control Act (RSA 125-D:1-13)

             Control of Algae and Other Aquatic Nuisances (RSA
             487:15-18)

    C.  Hazardous Wastes

         -   Hazardous Waste Management Program (RSA 147-A
             through 147-D, NHAR He-P 1905)

    D.  Oil Spill Prevention

         - Oil Spillage in Public Waters (RSA 146-A:1-15, 146-
            D:l-9, NHAR Ws 402, 404, 410-411)

    E. Oil/Gas/Mineral Development

         -  Mining and Reclamation (RSA 12-E:1-14)


II.  Protected Areas

    A. Coastal Wetlands and Sand Dune Protection

         -  Fill and Dredge in Wetlands (RSA 482-A:1-27, NHAR Wt
            100-700)

         -  Hampton Harbor Channel and Beach Erosion (RSA 216-
            B:1-6)

         -  Shore and Beach Preservation and Development (RSA
            217:1)

    B.  Tidelands/Submerged Lands Management

         - Conveyance of Property Under Water [RSA 4:40(a-e)]

         -  N.H. State Port Authority (RSA 271-A:1-17, NHAR Por
            100-500)

         -  Aquiculture (RSA 211:62-e)

    C. Marine Estuaries and Sanctuaries



    D. Critical Coastal Areas


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     -  Areas of Preservation Restoration (NHCMP 8-42)

E.  Coastal Wildlife Protection

     - Endangered Species Conservation Act (RSA 212-A:1-15,
        NHAR Fis 1001)

     - Native Plant Protection Act and Natural Heritage
        Inventory (RSA 217-A:1-12, NHAR RES-N 100-300)

     -  Damage to Fish, Other Aquatic Wildlife, or Their
        Habitats (RSA 211:71-74)

F.  Coastal Acquisition and Assistance Programs

     - Land Conservation Investment Program (RSA 221-A:1-
        13)

     - Right of Way to Recreational Waters (RSA 230:72-73)

     -  Conservation Districts (RSA 430-B:1-10)


































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                               PROGRESS REPORT               ~VZ
                        April 1, 1991 - June 30, 1991


                            Gulf of Maine Program

                               NA90AA-D-CZ527

      This award provides $98,000 in federal funds ($29,000 in non-
      federal funds) and extends from September 1, 1990 to August 31,
      1991. The funds are used to support the Gulf of Maine Program
      activities of Maine, New Hampshire and Massachusetts.

      This award provides support for three tasks:

           . Completion and Implementation of Gulf Action Plan;
           . Development of Public Education Tools; and
            *Implementation of Gulf Monitoring Program

      Gulf Action Plan

           During the period the Action Plan was distributed for public
*     ~and agency review. Over 75 organizations and individuals responded
      with comments and the Plan was revised for presentation to the Gulf
      Working Group. The priorities in the Plan are:

           . Coastal and marine pollution;
            .Monitoring and research;
            .Public education and outreach; and
           . Habitat protection

           The current draft of the Plan (see attached) will be presented
      to the Council for approval and then sent to the Governors and
      Premiers for their adoption. The draft describes over 25 work tasks
      and calls for a budget in excess of $1.5 million. In the draft each
      task is defined and the responsible entity and budget is
      identified.

           The development of the Action Plan has been applauded by the
      United Nations Environmental Programme and will be presented at the
      1992 UN conference in Brazil as an innovative approach to
      international waterbody 'management.

      Develou uublic education tools

           During the reporting period the Program continued to prepare
      the Program's newsletter Turnina the Tide. The mailing list is now
      over 1,700 individuals in the region. The newsletter is produced
      six times a year and helps to keep people informed about the
      Program and Gulf related events.

           The Program also produced the final Environmental Monitoring
      Plan and a three page Executive Summary. (These are being sent
      under separate cover.)








    Gulf links -- a guide to marine organizations in the Gulf -
was also completed during the period and will be distributed at the
CME meeting in July. The CME Annual Report was drafted and
published for release at the CME meeting.

    The Public Education Task Force completed the development of
their recommendations to the CME on how a regional public education
program should be structured and funded. (see attached) These
recommendations will be acted upon by the Council at the July
meeting.

Environmental Oualitv Monitorina Proaram

     As suggested above, the final Monitoring Plan and Executive
Summary were completed during the period. Also during the period a
final proposal for Gulfwatch -- a pilot monitoring project -- was
completed and implementation was initiated. Training sessions for
program participants were held in the U.S. and Canada and the
mussel cages will be deployed in July. Laboratory analysis on body
burdens (metals and organics) and measures for growth will be
conducted.

     An extension to the federal award for this task may be
necessary. It is likely the project will require several months
beyond the August 31, 1991 termination date of the award.   A
decision will be made soon on this issue.

Analysis of lecral recrime

     An early decision of the Program was to conduct an analysis of
the legal and management regime in the Gulf region. This work was
needed to identify conflicting management approaches and the
gaps/deficiencies in the legal regime.

    The analysis of state and federal laws affecting the Gulf is
completed. (The enclosed report was funded under NA89AA-D-CZ14O.)
The Council has provided funding to the Oceans institute of Canada
to conduct a companion study of provincial and Canadian federal
laws. This work will be completed this Fall.

     The final product of this effort will be a Council funded
region wide analysis of the laws and the development of statutory
amendments to the legal regime. This will be completed this Winter
and acted on by the Council.

D43









       RECOMMENDATIONS ON A GULF EDUCATION AND PARTICIPATION STRATEGY

                        TO THE COUNCIL ON THE MARINE ENVIRONMENT



                              From the Education and Participation Task Force

                                               July 19, 1991






The Education and Participation Task Force was given its mandate at the November, 1990, Council meeting.
The Task Force was directed to:


        a.      offer recommendations to the Council on methods that will foster a regional consciousness
                about the Gulf of Maine in state and provincial residents; and

        b.       offer recommendations to the Council on methods that will promote the exchange of technical
                skills and pertinent information among education and participation organizations in the region.



        During its tenure, the Education and Participation Task Force reviewed materials generated at the 1989
Gulf Conference work sessions on public education. Other materials reviewed by the Task Force included the
education section of the Draft Action Plan, and the education activities of several existing regional programs in
Canada and the United States. An inventory of marine education programs from the Gulf region was put into a
matrix form in order to assess which groups and topics were not covered. Using the matrix, the Task Force
found that there is a lack of marine educational activities targeted at the media, local officials, and state
legislators.


        Additional information on those education/participation efforts which are ongoing under the National
Estuaries Program in areas such as Puget Sound and Chesapeake Bay was compiled by the US EPA.


        In considering the many education strategies currently conducted by marine programs in the US and
Canada, compiling an inventory of existing education efforts underway in the Gulf Region, and assessing the
gaps in ongoing efforts, the Education and Participation Task Force has arrived at four priority recommendations
for the Council.












        In order to provide the level of commitment necessary to develop and implement effective and enduring
Gulf educational programs, there must be a core group of people willing to spend time on this task. Such a
committee will insure that all jurisdictions and sectors are adequately represented, and the proper expertise is
available for the development of regional education and participation programs.



Recommendation 1: Council Should Form a Standing Education and Participation Committee, comprised
of 15 members - 2 from each state and province; 1 from a Canadian federal agency; 1 from a US federal agency;
3 from the general public, 1 of which represents a news medium. The committee should have a 1/2 time
coordinator as staff.








        The Council must encourage, spport and acknowledge the public's role in managing and protecting Gulf
resources. The Council needs to make clear that local actions regarding such issues as pollution prevention,
sustainable resource use, or conservation of critical habitats, are critical to the overall health of the Gulf. There
are many different opportunities that the Council might use to convey this message. Dozens of local efforts
currently are underway should be highlighted by the Council. Other Council opportunities include conducting a
survey of public attitudes toward the Gulf to provide a baseline measurement of public awareness; coordinating
Gulf of Maine educational events/programs through the US Coastweeks and Canadian Environment Week;
making use of participation techniques developed by provincial offices involved in the Sustainable Development
Consultative Process; and increasing contact with local officials at events such as Council meetings.



Recommendation 2: Council Should Develop a Public Participation/Involvement Strategy for the Gulf
Program














        The Gulf Program suffers from the public's lack of awareness of the Program's mission and activities. It
is critical that, along with a concerted public education and participation strategy, the news media of the region
also be made aware of the unique characteristics of the Gulf of Maine and of the Gulf Program itself. The
experience of marine protection programs throughout the US and Canada indicates that cultivating contacts and
sources within all levels of news media is imperative to facilitate public awareness. During the next two years
the Gulf Program must concentrate on raising the profile of the Program among local, state, provincial, regional
and national media. In order to carry out this task the Gulf Program should use the skills of a 1/2 time media
coordinator.



Recommendation 3: Council Should Develop a Broad-based Media Strategy to Improve the Profile of the
Gulf Program








         It is evident that there is a wealth of marine research currently conducted or proposed to be conducted
in the Gulf region. Unfortunately, much of that research does not emerge in a form suitable for public
comprehension. Given that much of the research is supported by federal, state, or provincial funds, it is
incumbent upon researchers to provide a summary of research results to the original financial supporters, the
general public. In doing so, the research community will improve the level of scientific literacy among the
general public, and thus improve public support for protection of the Gulf. As a public body, the Council should
adopt a policy that reflects this principle. Such a policy statement is provided below:

         "The Gulf of Maine Council on the Marine Environment's policy shall be to support and encourage
         researchers to convey research results in a manner that promotes a scientifically literate society.
         Furthermore, research in the Gulf should be interactive, and in response to the public's need for
         information."



Recommendation 4: Council Should Adopt a Policy on Gulf Research that Promotes Scientific Literacy











Current Task Force Members who have expressed interest in continuing on the Standing Committee:


New Hampshire           New Brunswick           Nova Scotia

Stephanie D'Agostino    Gerry Hill              Pat Hinch
Sharon Meeker           Jaimie Steele           Diane Kenny


Maine                           Massachusetts           US Federal Agency

Mary Cerullo                    none                            none


Canadian Federal Agency

none




Additional Nominees suggested by Task Force members:


Canadian - Federal

Peter LeBlanc
Environment Canada

Canadian - Public                       Canadian - Media

Katharine Rice                          Gerry Whelan
Universalia Atlantic                    Canadian Broadcasting Corp. - Radio


Marcel Maesson                          Nancy Reagan
N.S. Trails Federation                  ATV, Halifax


Max Moulton                             Heather Proudfoot
Halifax School Board                    ATV, Halifax

Karen Westhaven-Stevens                 Richard Zurawski
NS Aquaculture Assoc.                   ATV, Haiifax

Dr. Karen Sullinger                     Rob Gorham
University of NB                        Chronicle Herald (Yarmoth, NS)

Robert Shaw
National Sea Products, NS



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I APPENDIX F:  SUMMARIES AND ABSTRACTS OF STATE LAWS
I                            (Submitted under separate cover.)

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