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








                                             STATE OF MAINE


                         DEPARTMENT OF ENVIRONMENTAL PROTECTION


                             NATURAL RESOURCES PROTECTION ACT
                                          Wetland Protection Rules,


                                                 Chapter 310         

                                           



                                                                            





                                                         


                QH
                87.3
                .N38
                1996





                Bureau of Land and Water Quality
		    No. DEPLW-15-A96                             Effectiv: June 30, 1990
										 Amended: September 1, 1996

















                                                 Wetland Protection

                                                         Chapter 310















                                                   Note Concerning the Text
                                                       August 27, 1996



           A table of contents and copies of some statutory definitions (Appendix A) have been added by the
           Department of Environmental Protection (DEP). These are not part of the text of the Wetland Protection
           Rules. In addition, the DEP has changed the location of some page breaks.

















                                                                                   TABLE OF CONTENTS



                                               Section                                                                                  Page


                                               1.    Preamble      ...............................................................................1
                                               2.    Applicability       .........................................................................1
                                               3.    Definitions      ............................................................................2
                                               4.    Wetlands of special significance                ............................................4
                                               5.    Standards      ..............................................................................6
                                               6.    Wetland Compensation Standards                    ..........................................9
                                               7.    Mitigation Banking           .................................................  .............. 10
                                               8.    Terms and conditions             ............................................................ 11
                                               9.    Application requirements             ....................................................... I I
                                               10. Severability        ........................................................................... 14
                                                     Appendix A











                06-096                    DEPARTMENT OF ENVIRONMENTAL PROTECTION


                Chapter 310:              WETLANDS PROTECTION


                1.  Preamble. The Legislature has found that the State!s freshwater wetlands, great ponds and coastal
                    wetlands, collectively referred to as either wetlands or water bodies in this rule, are resources of state
                    sipfficance, that these resources have great scenic beauty and unique characteristics, unsurpassed
                    recreational, cultural, historical, and environmental value of present and future benefit to the citizens of
                    the State, and that uses are causing the rapid degradation and, in some cases, the destruction of these
                    critical resources, producing significant adverse economic and environmental impacts and threatening
                    the health, safety and general welfare of the citizens of the State. The Legislature has also found that
                    the cumulative effect of frequent minor alterations and occasional major alterations of these resources
                    poses a substantial threat to the environment and economy of the State and its quality of life.

                    In recogrution of the important roles of wetlands in our natural environment, the Board of
                    Environmental Protection supports the nation-wide goal of no net loss of wetland functions and values.
                    In some cases, however, the level of mitigation necessary to achieve no net loss of wetland functions
                    and values through construction of replacement wetlands will not be practicable, or will have an
                    insignificant effect in protecting the State!s wetlands resources. In other cases, the preservation of
                    unprotected wetlands or adjacent uplands may achieve a greater level of protection to the environment
                    than would be achieved by strict application of a no net loss standard through construction of
                    replacement wetlands. Therefore, the Board recognizes that a loss in wetland functions and values may
                    not be avoided in every instance.

                    The purpose of this rule is to ensure     that the standards set forth in Section 480-D of the Natural
                    Resources Protection Act, Section 464, Classification of Maine Waters and Section 465, Standards for
                    Classification of Fresh Surface Waters are met by applicants proposing regulated activities in, on, over
                    or adjacent to a wetland or water body.

                2.  Applicability

                    A. This rule applies to the alteration of a coastal wetland, great pond or freshwater wetland as defined
                        in 38 M.R.S.A. Sec. 480-B of the Natural Resources Protection Act (NRPA), that requires an
                        individual permit or is eligible for Tier 2 or Tier 3 review. In addition, Sections 3 and 4 apply to
                        the alteration of a freshwater wetland eligible for Tier I review.

                    B.  For Tier 2 and 3 applications, wetland boundaries must be delineated using the methods described
                        in the "Corps of Engineers Wetlands Delineation Manual" (1987).

                    C.  This rule does not apply to an activity that is exempt from permit requirements under the NRPA,
                        or that qualifies for a general permit or permit by rule.

                    D.  This rule does not apply to any application accepted as complete by the department prior to the
                        effective date of this rule.







                06-096                    DEPARTMENT OF ENVIRONMENTAL PROTECTION




                3. Definitions. The following terms, as used in this rule, have the following meanings, unless the context
                    indicates otherwise.


                NOTE: The following terms are defined by statute: coastal sand dune systems; coastal wetlands;
                         freshwater wetlands; great ponds; normal high water line; permanent structure; river, stream or
                         brook; and significant wildlife habitat. A copy of these definitions will be included in a packet with
                         this rule for informational purposes.

                    A. Adjacent to a Protected Natural Resource. The area within 100 feet, measured horizontally, of
                         the normal high water line of a great pond or the upland edge of a coastal wetland or freshwater
                         wetland.


                    NOTE: An activity adjacent to a protected natural resource is not regulated under the NRPA if existing
                             barriers (i.e. ice berms, retaining walls) or site conditions (i.e. negative slope) are such that
                             material or soil could not wash into the resource. Silt fence and hay bale barriers do not
                             change the law's applicability to an activity.

                    B. Alteration. Dredging; bulldozing; removing or displacing soil, sand, vegetation or other materials;
                         draining or dewatering; filling; or any construction, repair or alteration of any permanent structure.

                         On a case-by-case basis and as determined by the department, the term "alteratiore' may not
                         include:


                             (1) An activity disturbing very little soil such as installing a fence post or planting shrubs by
                             hand;


                             (2)The addi tion of a minor feature to an existing structure such as a bench or hand rail; and

                             (3) The construction, repair or alteration of a small structure with minimal impact such as a
                             nesting box, pasture fence, or staff gauge.

                    C. Aquatic Vegetation. Plants that usually grow on or below the surface of the water for most of
                         the growing season in most years.

                    D. Compensation. Replacement of a lost or degraded. wetland function with a function of equal or
                         greater value.

                    E.   Creation. An activity bringing a wetland into existence at a site where it did not formerly occur
                         for the purpose of compensation.

                    F.   Critically Imperiled Natural Community (Sl). An assemblage of. plants, animals and their
                         common environment that is extremely rare in Maine or vulnerable to extiTation from the state
                         due to some aspect of its biology. An example of an S I community that occurs in freshwater
                         wetlands is the Outwash Plain Pondshore community.




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                   G.   Emergent Marsh Vegetation. Plants that: 1. are erect, rooted and herbaceous; 2. grow in
                        saturated to permanently flooded areas; and 3. do not tolerate prolonged inundation of the entire
                        plant. Examples of emergent marsh vegetation include cattails, burreed, tussock sedge, rice cut
                        grass, pickerel weed, arrowhead and bulrush.

                   H.   Enhancement. An activity increasing the net value of a wetland.

                   1.   Fill. a. (verb) To put into or upon, supply to, or allow to enter a wetland or water body any earth,
                        rock, gravel, sand, silt, clay, peat or debris; b. (noun) material, other than structures, placed
                        adjacent to a wetland or water body; or material placed in a wetland or water body with the result
                        of a change in the bottom elevation or character or boundaries of the wetland or water body. This
                        term also includes roads, paths and other projects consisting of uncontained material regardless of
                        how long the material remains in the wetland or water body.

                   J.   Functions. 'Me roles wetlands serve which are of value to society or the environment including,
                        but not limited to, flood water storage, flood water conveyance, ground water recharge and
                        discharge, erosion control, wave attenuation, water quality protection, scenic and aesthetic use,
                        food chain support; fisheries, wetland plant habitat, aquatic habitat and wildlife habitat.

                   K.   Health or Safety Project An activity undertaken to protect or improve public health and safety,
                        or to lessen the risk of injury in a public area through the modification of existing or potentially
                        hazardous conditions. Public health projects and safety projects include, but are not limited to,
                        measures taken to provide or enhance a potable public water supply, to provide fire protection, to
                        control flooding, to provide for safe disposal of solid waste and waste water, and to construct,
                        upgrade, or repair public roads, bridges, airports, railroads and other transportation facilities.

                   L.   Imperiled Natural Community (S2). An assemblage of plants, animals and their common
                        environment that is rare in Maine or vulnerable to further decline. Examples of S2 communities
                        that occur in freshwater wetlands are Atlantic White Cedar Swamp, Alpine Bog-Meadow,
                        Circumneutral Fen, Maritime Slope Bog and Coastal Plain Pocket Swamp.

                   M.   Maintenance. Activities required to assure continuation of a wetland or the accomplishment of
                        project goals after a restoration or creation project has been technically completed, including, but
                        not limited to, water level manipulations and control of non-native plant species.

                   N.   Mitigation. Actions taken to off-set potential adverse environmental impact. Such actions include
                        the following:

                        (1) Avoiding an impact altogether by not taking a certain action or parts of an action;

                        (2) Mininiizing an impact by limiting the magnitude or duration of an activity, or by controlling
                            the timing of an activity;

                        (3) Rectifying an impact by repairing, rehabilitating, or restoring the affected environment;

                        (4) Reducing or eliminating an impact over time through preservation and maintenance operations
                            during the life of the project; and

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                         (5) Compensating for an impact by replacing affected resources or environments.

                    0.   Mitigation Banking. Wetland restoration, enhancement, preservation or creation for the purpose
                         of providing compensation credits in advance of future authorized impacts to similar resources.

                    P.   Peatland. A freshwater wetland, typically called a bog or fen, dominated by ericaceous shrubs
                         (heath family), sedges and sphagnurn moss and usually having a saturated water regime.

                    Q.   Persistence. The overall ability of a wetland to be self-sustaining, continue to exist, and to serve
                         intended functions over an indefinite period of tune, although its vegetation, soils, hydrologic
                         characteristics and precise boundaries may change.

                    R.   Practicable. Available and feasible considering cost, existing technology and logistics based on
                         the overall purpose of the project.

                    S.   Preservation. The maintenance of a wetland area or associated upland areas that contribute to the
                         wetland! s functions so that it remains in a natural or undeveloped condition. Preservation measures
                         include, but are not limited to, conservation easements and land trusts.


                    T.   Restoration. An activity returning a wetland from a disturbed or altered condition with lesser
                         acreage or fewer functions to a previous condition with greater acreage or function.

                    U.   Utility Line. A pipe, cable or wire, along with appurtenant facilities, used to transmit or transport
                         a commodity, service or waste product including, but not limited to, water, oil, natural gas,
                         electricity, communications and sewage. Appurtenant facilities include, but are not limited to,
                         supporting structures such a, poles, pump stations, storage tanks and cleared rights-of-way. Not
                         included as part of a utility line are buildings, generating stations and transmission substations.

                    V. Vegetation Removal or Displacement. 'Removal or displacement" means cutting, herbicide
                         spraying, uprooting, shading by structures or any other type of activity that results in a change in
                         plant species diversification.

                    W. Water Dependent Use. A use which cannot occur without access to surface water. Examples of
                         uses which are water dependent include, but are not limited to, piers, boat ramps, marine railways,
                         lobster pounds, marinas and peat mining. Examples of uses which are not water dependent
                         include, but are not limited to, boat storage, residential dwellings, hotels, motels, restaurants,
                         parking lots, retail facilities and offices.

                    X. Wetland Value. The importance of a wetland with respect to the individual or collective functions
                         it provides.


                    NOTE: A wetland may have different values for different functions. For example, a wetland may have
                            a high value for wildlife habitat, but little value for flood storage.

                4. Wetlands of Special Significance. All coastal wetlands and great ponds are considered wetlands of
                    special significance. In addition, certain freshwater wetlands are considered wetlands of special
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                    A.   Freshwater Wetlands of Special Significance. A freshwater wetland of special significance has
                         one or more of the following characteristics.

                         (1) Critically imperiled or imperiled community. The freshwater wetland contains a natural
                             conummity that is critically imperiled (SI) or imperiled (S2) as defined by the Natural Areas
                             Program.

                         (2) Significant wildlife habitat. The freshwater wetland contains significant wildlife habitat as
                             defined by 38 M.R.S.A. ï¿½ 480-B(IO).

                         (3) Location near coastal wetland. The freshwater wetland area is located within 250 feet of a
                             coastal wetland.


                         (4) Location near GPA great pond. The freshwater wetland area is located within 250 feet of the
                             normal high water line, and within the same watershed, of any lake or pond classified as GPA
                             under 38 M.R.S.A. ï¿½ 465-A.

                         (5) Aquatic vegetation, emergent marsh vegetation or open water. The freshwater wetland
                             contains under normal circumstances at least 20,000 square feet of aquatic vegetation,
                             emergent marsh vegetation or open water, unless the 20,000 or more square foot area is the
                             result of an artificial ponds or impoundment.

                         (6) Wetlands subject to flooding. The freshwater wetland area is inundated with floodwater during
                             a 100-year flood event based on flood insurance maps produced by the Federal Emergency
                             Management Agency or other site-specific information.

                         (7) Peatiands. The freshwater wetland is or contains peatlands, except that the department may
                             determine that a previously mined peatland, or portion thereof, is not a wetland of special
                             significance.

                         (8) River, stream or brook. The freshwater wetland area is located within 25 feet of a river,
                             stream or brook.


                    B.   Perrnit Process. Alterations of wetlands of special significance usually require an individual
                         permit. However, some alterations of freshwater wetlands of special significance may be eligible
                         for Tier I or 2 review if the department determines, at the applicant's request, that the activity will
                         not negatively affect the freshwater wetlands or other protected natural resources present. In
                         making this determination, the department considers such factors as the size of the alteration,
                         functions of the impacted area, existing development or character of the area in and around the
                         alteration site, elevation differences and hydrological connection to surface water or other protected
                         natural resources, among other things.

                    C.   Seasonal Factors. When determining the significance of a resource or impact from an activity,
                         seasonal factors and events that temporarily reduce the numbers or visibility of plants or animals,
                         or obscure the topography and characteristics of a wetland such as a period of high water, snow
                         and ice cover, erosion event, or drought, are taken into account. Determinations may be deferred


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                          for an amount of time necessary to allow an assessment of the resource without such seasonal
                          factors.


                 5. General Standards. The following standards apply to all projects as described in Section 2.

                     A.   Avoidance. No activity that would cause a loss in wetland area, functions and values shall be
                          permitted if there is a practicable alternative to the project that would be less damaging to the
                          environment. Each application must provide an analysis of alternatives (see Section 9(A)) in
                          order to demonstrate that a practicable alternative does not exist.

                          In wetlands of special significance, projects for which no practicable alternative may exist are
                          limited to those necessary for*

                          (1) Health and safety;

                          (2) Crossings by road, rail or utility lines;

                          (3) Water dependent uses;

                          (4) Expansion of a facility or construction of a related facility that cannot practicably be located
                              elsewhere because of the relation to the existing facility, if the existing facility was constructed
                              prior to September 1, 1996;

                          (5) Mineral excavation and appurtenant facilities; or

                          (6) Walkways@

                     B.   Minimal Alteration. The amount of wetland to be altered must be kept to the minimum amount
                          necessary.

                     C.   Compensation. Compensation is the off-setting of a lost wetland function with a function of equal
                          or greater value. The goal of compensation is to achieve no net loss of wetland functions and
                          values. Every case where compensation may be applied is unique due to differences in wedand
                          type and geographic location. For this reason, the method, location and amount of compensation
                          work necessary is variable.

                          In some instances, a specific impact may require compensation on-site or within very close
                          proximity to the affected wetland. For example, altering a wetland that is providing stormwater
                          retention which reduces the risk of flooding downstream will likely require compensation work to
                          ensure no net increase in flooding potential. In other cases, it may not be necessary to compensate
                          on-site in order to off-set project impacts. Where wetland priorities have been established at a
                          local, regional or state level, these priorities should be considered in devising a compensation plan
                          in the area to allow the applicant to look beyond on-site and in-kind compensation possibilities.

                          (1) When required. Compensation is required when the department determines that a wetland
                              alteration will cause a wetland function or functions to be lost or degraded as identified by a
                              functional assessment (see paragraph 2 below) or by the departinent's evaluation of the project.


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                             If a functional assessment is not required under this rule, no compensation will be required
                             unless the department identifies wetland functions that will be lost or degraded.
                        (2)  Functional assessment. Resource functions that will be'lost or degraded are identified by the
                             department based upon a functional assessment done by the applicant and by the department's
                             evaluation of the project. The functional assessment must be conducted in accordance with
                             Section 9(B)(3) for all activities:

                             (a) in wetlands of special significance; or

                             (b) in all other wetlands which alter more than 20,000 square feet per project

                                 The functional assessment is not required for the activities listed in Section 5(C)(6) below.

                        (3) Location of compensation projects. The compensation must take place in a location:

                             (a) On or close to a project site as necessary to off-set direct impacts to an aquatic ecosystem;

                             (b) Otherwise, compensation may occur in an off-site location where it will satisfy wetland
                                 priority needs as established at the local, regional or state level to achieve an equal or
                                 higher net benefit for wetland systems, if approved by the department

                        (4)  Types of compensation. Compensation may occur in the form Of-.

                             (a) Restoration of previously degraded wetlands;
                             (b) Enhancement of existing wetlands;
                             (c) Preservation of existing wetlands or adjacent uplands where the site to be preserved
                                 provides significant wetland functions and might otherwise be degraded by unregulated
                                 activity; or
                             (d) Creation of wetland from upland.

                             More than one method of compensation may be allowed on a single project. Preference i@
                             generally given to restoration projects that will off-set lost functions within, or in close
                             proximity to, the affected wetland. However, other types of compensation may be allowed by
                             the department if the result is an equal or higher overall net benefit for wetland systems.

                        (5)  Compensation amounts. The amount           of compensation required to replace lost functions
                             depends on a number of factors including: the size of the alteration activity; the functions of
                             the wetland to be altered; the type of compensation to be used; and the characteristics of the
                             compensation site. Compensation shall be performed to meet the following ratios at a
                             minimum, unless the department finds that a different ratio is appropriate to directly off-set
                             wetland functions to achieve an equal or higher net benefit for wetlands:

                             (a) 1:1 for restoration, enhancement or creation to compensate for impacts in wetlands not of
                                 special significance;

                             (b) 2:1 for restoration, enhancement or creation to compensate for impacts in wetlands of
                                 special significance;

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                              (c) 8:1 for preservation, including adjacent upland areas, to compensate for impacts in all
                                  wetlands.


                         (6) Exceptions. Neither a functional assessment nor compensation is required for the following
                              single, complete projects:

                              (a) Freshwater wetlands

                                  (i) Alterations of less than 500 square feet in a freshwater wetland of special significance
                                      provided that the department determines that there will be only a minimal effect on
                                      freshwater wetland functions and values, significant wildlife habitat or imperiled or
                                      critically imperiled community due to the activity;

                                  (ii) Alterations of less than 20,000 square feet in a freshwater wetland not of special
                                      significance, provided that the department determines that there will be only a minimal
                                      effect on freshwater wetland functions and values due to the activity;

                                  (iii) Alterations in a freshwater wetland for a road, rail or utility line crossing of a river,
                                      stream or brook for a distance of up to 100 feet from the normal high water line on
                                      both sides, measured perpendicular to the thread of the river, stream or brook,
                                      provided:

                                      a. Any affected freshwater wetland does not contain significant wildlife habitat or a
                                          critically imperiled or imperiled community; and

                                      b. The total project affects 500 square feet or less of the channel.

                              (b) Coastal Wetlands. A coastal wetland alteration that does not cover, remove or destroy
                                  marsh vegetation, does not fill more than 500 square feet of intertidal or subtidal area, and
                                  has no adverse effect on marine resources or on wildlife habitat as determined by the
                                  Department of Marine Resources or the Department of Inland Fisheries & Wildlife as
                                  applicable.

                              (c) Great Ponds. A great pond alteration that does not place any fill below the normal high
                                  water line, except as necessary for shoreline stabilization projects, and has no adverse
                                  effect on aquatic habitat as determined by the Department of Inland Fisheries & Wildlife
                                  or the Department of Environmental Protectiori

                              (d) Walkways/Access structures. A wetland alteration consisting of a walkway or access
                                  structure for public educational purposes or to comply with the Americans with
                                  Disabilities Act.


                         (7) Waiver.      The department may waive the requirement for a functional assessment,
                              compensation, or both. The department may waive the requirement for a functional
                              assessment if it already possesses the information necessary to determine the functions of the
                              area proposed to be altered. The department may waive the requirement for compensation if it


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                             determines that any impact to wetland functions and values from the activity will be
                             insignificant.

                    D. No Unreasonable Impact.

                        (1)  Even if a project has no practicable alternative and the applicant has minimized the proposed
                             alteration as much as possible, the application will be denied if the activity will have an
                             unreasonable impact on the wetland. "Unreasonable impact" means that one or more of the
                             standards of the Natural Resources Protection Act, 38 M.R.S.A. ï¿½ 480-D, will not be met. In
                             making this determination, the department considers--:

                             (a) The area of wetland that will be affected by the alteration and the degree to which the
                                 wetland is altered, including wetland beyond the physical boundaries of the project;

                             (b) The functions and values provided by the wedand;

                             (c) Any proposed compensation and the level of uncertainty regarding it; and

                             (d) Cumulative effects of frequent minor alterations on the wetland.

                        (2)  Activities may not occur in, on or over any wetland of special significance containing
                             threatened or endangered species unless the applicant demonstrates that:

                             (a) The wetland alteration will not disturb the threatened or endangered species; and

                             (b) The overall project will not affect the continued use or habitation of the site by the species.

                             When considering whether a single activity is reasonable in relation to the direct and
                             cumulative impacts on the resource, the department considers factors such as the degree of
                             harm or benefit to the resource; the frequency of similar impacts; the duration of the activity
                             and ability of the resource to recover; the proximity of the activity to protected or highly
                             developed areas; traditional uses; the ability of the activity to perform as intended; public
                             health or safety concerns addressed by the activity; and the type and degree of benefit from the
                             activity (public, commercial or personal).

               6. Wetland Compensation Standards. Where compensation is required, the following standards apply:

               NOTE: If the department! s requirements for compensation are otherwise met, additional areas of
                    compensation required by U.S. Army Corps of Engineers do not also have to meet the department's
                    requirements for compensation.


                    A. Expertise. The applicant shall demonstrate sufficient scientific expertise to carry out the proposed
                        compensation work.

                    B.  FInancial Resources. The applicant shall demonstrate sufficient financial resources to complete
                        the proposed compensation work, including subsequent monitoring and corrective actions.



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                    C.   Persistence. For restoration, enhancement and creation projects, on the basis of an updated
                         functional assessment, a minimum of 85% of the compensation area must successfully replace the
                         altered wetland's functions after a period of three years unless otherwise approved by the
                         department. If this level is not achieved, or if evidence exists that the compensation site is
                         becoming less effective, the department may require additional monitoring and corrective action, or
                         additional wetland restoration, enhancement or creation in order to achieve the compensation ratio
                         as originally approved.

                    D.   Monitoring. The applicant shall set forth a plan for interim reporting and remediation measures
                         during monitoring of the restored or created wetland over a minimum of five years, which shall
                         include contingency plans for replanting, contouring or other corrections if the project fails to meet
                         project goals during that time.

                    E.   Maintenance.      A compensation project that will naturally maintain itself without active
                         intervention is preferred. However, the permittee may be required to conduct activities to assure
                         continuation of the wetland, or the accomplishment of compensation goals, after a compensation
                         project has been technically completed. Such activities may include, but are not limited to, water
                         level manipulations and control of non-native plant species.


                    F. Protection


                         (1) A compensation project involving restoration, enhancement or creation must provide for
                             covenant and restriction or a conservation easement conveyed to a qualified holder that
                             requires maintenance of the area as a coastal wetland, freshwater wetland or great pond *in
                             perpetuity. The conservation easement must list the department as an enforcing agent.
                             Regardless of the size of the compensation area, any future alterations in, on or over it must be
                             approved by the department

                         (2) A compensation project involving preservation must provide for a conservation easement
                             conveyed to a qualified holder or covenant and restriction so that the parcel will remain
                             undeveloped in perpetuity. The easement must list the department as an enforcing agent.
                             Compensation areas may be deeded to local or state conservation groups or agencies, but any
                             land management practices must be approved by the department

                    G.   Source of Water (Creation Only). For a creation project, the department prefers that the created
                         wetland be located adjacent to an existing wetland or waterbody.

                    H.   Implementation Schedule. A schedule for implementing the compensation plan must be
                         submitted. Generally, compensation will be required to be completed prior to, or concurrent with,
                         the permitted alteration. For on-going or long-term alterations, such as mining, compensation must
                         be completed no later than within the first year of operation unless otherwise approved by the
                         department.

                7. Mitigation Banking

                    A. Purpose. A public or private entity may apply to the department to undertake wetland
                         compensation projects for the purposes of off-setting one or more alteration projects proposed at


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                       that time or in the future. The ratios set forth in Section 5(C)(5) above will be used a s guidance
                       to determine the amount of credit required for any proposed alteration.

                   B.  Location. Compensation work must take place in the same watershed or in the project vicinity of
                       the future alteration work, if feasible. Otherwise, the work must occur as close to the wetland
                       alteration site or sites as feasible.


                   C.  Effectively Functioning. A project to be used for compensation credit must be functioning as
                       proposed in the mitigation barfldng application, as demonstrated by an updated functional
                       assessment, in order to qualify as an offset to a proposed activity.

                   D.  Lirnitation. No person may use mitigation banking to compensate for more than 25 acres of
                       wetland alteration in any one year period.

                   E.  Expertise. The applicant is required to show a combination of expertise, experience and
                       resources sufficient to undertake and maintain land placed in mitigation banking.

               8.  Terrns and Conditions. The department may, as a term or condition of approval, establish any
                   reasonable requirement to ensure that the proposed development will meet the standards of Title 38
                   M.R.S.A. Sec. 480-D. such as:


                   A. Design changes to help insure the success of the project,

                   B. Buffer requirements;

                   C. Project supervisory requirements;

                   D.  Monitoring requirements;

                   E.  Mid-course correction or maintenance capability;

                   F.  Bonding or other assurances of continued          financial resources to complete compensation
                       requirements; and

                   G.  Tuning requirements for all or portions of a project.

               9.  Application Requirements. In addition to broader information required for a Natural Resources
                   Protection Act permit and Water Quality Certification, an application for a wetland alteration activity
                   must contain the following information, unless the department determines that more or less information
                   is needed to evaluate a specific project, based on the nature of the alteration proposed.

                   (1) Alternatives Analysis. A report that analyzes whether a less environmentally damaging
                       practicable alternative to the proposed alteration, which meets the project purpose, exists.
                       Determining whether a practicable alternative exists includes:

                       (1) Utilizing, managing or expanding one or more other sites that would avoid the wetland impact,



                                Chapter 3 10: Natural Resources Protection Act & Water Quality Certification








                06-096                   DEPARTMENT OF ENVIRONMENTAL PROTECTION



                         (2) Reducing the size, scope, configuration or density of the project as proposed, the reby avoiding
                             or reducing the wetland impact;

                         (3) Developing alternative project designs, such as cluster development, that avoid or lessen the
                             wetland impact, and

                         (4) Demonstrating the need, whether public or private, for the proposed alteration.

                    B. Site Characteristics Report. A report that contains the following:

                         (1) A plan at a scale of a minimum of 1 inch equals 100 feet, that shows two-foot contour
                             intervals, existing wetland boundaries, - the area of wetland to be altered, and project
                             dimensions. All components of the project unpacting wetlands or other protected natural
                             resources must be included;

                         (2) Existing wetland characteristics including water depths, vegetation and fauna;

                         (3) If required, a functional assessment of the wetland to be altered, conducted by a qualified
                             professional, that analyzes the wetland' s value based on the functions it serves and how the
                             wetland will be affected by the proposed alteration.       The functional assessment must be
                             conducted by a qualified professional(s) using an acceptable methodology approved by the
                             department. If other than an established methodology is proposed, the applicant must submit
                             documentation describing how the methodology was developed, how the wetland functions and
                             values are determined using the methodology, and how much field testing the technique has
                             undergone.


                             In cases where the size of the wetland alteration or other factors make the use of an established
                             assessment methodology impracticable or inappropriate, the department may instead accept the
                             best professional judgment of a qualified professional. The applicant must notify the
                             department if he or she intends to use best professional judgment; and

                         NOTE: For great ponds, a functional assessment is not usually required. Infon-nation requirements
                               . are determined by the department on a case-by-case basis.

                         (4) Current photographs of the wetland to be altered that show its characteristics. Photographs
                             may be taken from the air or ground but should be taken during the growing season.

                    C.   Activity Description. A description of the overall proposed activity with particular reference to its
                         unpact on the wetland, including the precise location of the project activity, its dimensions, the
                         amount of fill (if any proposed), any proposed drainage, the timing and procedures proposed for
                         the alteration, and any efforts proposed for mducing impacts.

                    D.   Compensation Plan. A plan for the proposed compensation work, if any, including a topographic
                         map at a scale of a minimum of 1 inch equals 100 feet showing two-foot contour intervals and
                         proposed wetland boundaries. This plan must also include:

                         (1) Proposed boundaries and characteristics of the compensation site, including elevation, sources
                             of water, and proposed vegetation;

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                06-096                    DEPARTMENT OF ENVIRONMENTAL PROTECTION




                         (2)A narrative describing the specific goals of the compensation work in terms of particular
                             wetland functions and values as related to those of the original wetland. This narrative must
                             also identify the criteria by which to measure success of the compensation work (e.g. water
                             level within tolerances as defined in the proposal, percent survival of plants, etc.);

                         (3) A narrative describing the available literature or experience to date (if any) for carrying out the
                             compensation work;

                         (4) Proposed implementation and management procedures for the compensation work;

                         (5) A description of the short-term and long-term sources of water for the wetland, including the
                             water quality of these sources;

                         (6) Plans for re-planting, including a description of plant species, sizes and sources of plant
                             material, numbers of each species/size, proposed spacing of plants, and explanation of how,
                             when and where seeding or planting will take place;

                         (7) Propo sed buffers or protective measures such as sediment control methods;

                         (8) Plans for monitoring the compensation work, identifying criteria which require mid-course
                             corrections (e.g. less than 75% plant survival after 2 years). A description of proposed
                             remediation measures and a construction schedule for them shall be included unless otherwise
                             approved by the department; and

                         (9) Plans, if any, for control of non-indigenous plant species.

                    E.   Covenant and Restriction or Conservation Easernent. For compensation projects involving a
                         covenant and restriction or a conservation easement, the proposed deed or easement language,
                         developed in accordance with Section 6(F) above, must be submitted.                 Additionally, any
                         agreements or terms necessary to execute the restriction or easement, such as an agreement for the
                         holder of the easement, must also be included.



                         NOTE: The applicant is strongly encouraged, but not required, to meet with the department staff in
                                 order to establish the wetland!s classification and the overall adequacy of the proposal
                                 before drafting actual plans.


                     F.  Additional Information. Because of the site-specific nature of activities and potential impacts,
                         more or less information may be required by the department on a case-by-case basis, in order to
                         determine whether the standards are met. If the Project Manager identifies particular information
                         needed to review the project, that information must be included when the application is submitted
                         to the department or the application will not be accepted as complete for processing. Also,
                         additional information may be required by the department during the review process to determine
                         whether the standards are met. Failure to provide any requested additional information necessary
                         for the processing of the application may result in the denial of the application.


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           06-096           DEPARTMENT OF ENVIRONMENTAL PROTECTION



           10. Severability. Should any provision of these rules be held invalid or ineffective by a court of law, the
              decision shall not invalidate any other provision of these rules.

                            AUTHORITY:        38 M.R.S.A. Sec. 341-1)(1)


                            ADOPTED:          June 13, 1990
                            EFFECTIVE DATE:   June 30, 1990
                            AMENDED:          Sept. 1, 1996
















































                       Chapter 3 10: Natm-al Resources Protection Act & Water Quality Ceifffication


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                                                              APPENDIX A


                 Additional Definitions. The following terms are defined under the Natural Resources Protection Act
                      (NRPA), Section 480-B. They are included here for your reference and attention because the ability
                      to perform activities under NRPA is dependent upon them. Any questions about these terms' meaning
                      should be directed specificallyto the Bureau of Land and Water Quality, Division of Land Resources
                      Regulation staff.

                      (1) Coastal Sand Dune Systems. "Coastal sand dune systems" means sand deposits within a marine
                          beach system, including, but not limited to, beach berms, frontal dunes, dune ridges, back dunes
                          and other sand areas deposited by wave or wind action. Coastal sand dunes may extend into the
                          coastal wetlands.


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

                      (3) Forest Management Activities. "Forest management activities" means timber stand improvement,
                          timber harvesting, forest products harvesting and regeneration of forest stands.

                      (4) Freshwater wetlands. 'Freshwater wetlands" means freshwater swamps, marshes, bogs and
                          similar areas that are:

                          a.  Deleted. Laws 1995, ch. 460, ï¿½ 1.1

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

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

                      (5) Great Ponds. "Great ponds" means any inland bodies of water which in a natural state have a
                          surface area in excess of 10 acres and any irdand bodies of water artificially formed or increased
                          which have a surface area in excess of 30 acres.


                      (6) Normal High Water Line. "Normal high water line" means that line along the shore of a great
                          pond, river, stream, brook or other nontidal. body of water which is apparent from visible
                          markings, changes in the character of soils due to prolonged action of the water or from changes
                          in vegetation and which distinguishes between predominantly aquatic and predominantly
                          terrestrial land. In the case of great ponds, all land below the normal high water line shall be
                          considered the bottom of the great pond for the purposes of this article.


              lRepeal effective September 29, 1995.









                        (7)  Permanent Structure. "Permanent structure" means any structure constructed or erected with a
                             fixed location, or attached to a structure with a fixed location, on or in the ground within a fragile
                             mountain area, or having a fixed location in, on or over the water for a period exceeding 7 months
                             each year, including, but not limited to, causeways, piers, docks, concrete slabs, piles, marinas,
                             retaining walls and buildings.

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


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

                             b. It contains or is known to contain flowing water continuously for a period of at least 3
                             months of the year in most years.

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

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

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

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

                        (9)  Significant wildlife habitat. "Significant wildlife habitat" means the following areas to the extent
                             that they have been mapped by the Department of Inland Fisheries and Wildlife or are within any
                             other protected natural resource: habitat as defined by the Department of Inland Fisheries and
                             Wildlife, for species appearing on the official state or federal lists of endangered or threatened
                             animal species; high and moderate value deer wintering areas and travel corridors as defined by
                             the Department of Inland Fisheries and Wildlife; high and moderate value waterfowl and wading
                             bird habitats, including nesting and feeding areas as defined by the Department of Inland
                             Fisheries and Wildlife, critical spawning and nursery areas for Atlantic sea run salmon as defined.
                             by the Atlantic Sea Run Salmon Commission; shorebird nesting, feeding and staging areas and
                             seabird nesting islands as defined by the Department of Wand Fisheries and Wildlife; and
                             significant vernal pools as defined and identified by the Department of Inland Fisheries and
                             Wildlife. For purposes of this subsection, "identifieT. means identified in a specific location by
                             the Department of Inland Fisheries and Wildlife.



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