An Act Regarding Permitting under the Natural Resources Protection Act
Sec. 1. 38 MRSA §480-B, sub-§1-C is enacted to read:
Sec. 2. 38 MRSA §480-B, sub-§5-B, as enacted by PL 2011, c. 64, §2, is amended to read:
Sec. 3. 38 MRSA §480-B, sub-§9, as amended by PL 2001, c. 618, §1, is further amended to read:
"River, stream or brook" does not mean a ditch or other drainage way constructed, or constructed and maintained, solely for the purpose of draining storm water or a grassy swale.
Sec. 4. 38 MRSA §480-B, sub-§9-A, ¶B, as amended by PL 2009, c. 295, §1 and PL 2011, c. 682, §38, is further amended to read:
(1) A public water system as defined in Title 22, section 2601, subsection 8 , except that "significant groundwater well" includes: ;
(a) A public water system used solely to bottle water for sale; and
(b) Any portion of a public water system that is:
(i) Constructed on or after January 1, 2009;
(ii) Used solely to bottle water for sale; and
(iii) Not connected to another portion of the public water system through pipes intended to convey water.
For purposes of this paragraph, a public water system that is used solely to bottle water for sale includes a public water system that bottles water for sale and may provide a de minimus amount of water for other purposes, such as employee or other use, as determined by the department;
(2) Individual home domestic supply;
(3) Agricultural use or storage;
(3-A) Dewatering of a mining operation;
(4) A development or part of a development requiring a permit pursuant to article 6, article 7 or article 8-A; or
(5) A structure or development requiring a permit from the Maine Land Use Planning Commission.
Sec. 5. 38 MRSA §480-C, sub-§1, as amended by PL 2001, c. 618, §2, is further amended to read:
(1) Under normal circumstances, at least 20,000 80,000 square feet of aquatic vegetation, emergent marsh vegetation or open water, except for artificial ponds or impoundments; or
(2) Peatlands dominated by shrubs, sedges and sphagnum moss.
A person may not perform or cause to be performed any activity in violation of the terms or conditions of a permit.
Sec. 6. 38 MRSA §480-C, sub-§4, as enacted by PL 2007, c. 399, §11, is amended to read:
Sec. 7. 38 MRSA §480-D, first ¶, as amended by PL 2009, c. 615, Pt. E, §7, is further amended to read:
The department shall grant a permit upon proper application and upon such terms as it considers necessary to fulfill the purposes of this article. The department shall grant a permit when it finds that the applicant has demonstrated that the proposed activity meets the standards set forth in subsections 1 to 11, except that when an activity requires a permit only because it is located in, on or over a community public water system primary protection area the department shall issue a permit when it finds that and does not otherwise require a permit pursuant to section 480-C the applicant has demonstrated must demonstrate that the proposed activity meets the standards set forth in subsections 2 and 5.
Sec. 8. 38 MRSA §480-D, sub-§3, as amended by PL 2011, c. 653, §15 and affected by §33, is further amended to read:
In determining whether mining, as defined in section 490-MM, subsection 11, will comply with this subsection, the department shall review an analysis of alternatives submitted by the applicant. For purposes of this subsection, a practicable alternative to mining, as defined in section 490-MM, subsection 11, that is less damaging to the environment is not considered to exist. The department may consider alternatives associated with the activity, including alternative design and operational measures, in its evaluation of whether the activity avoided and minimized impacts to the maximum extent practicable.
In determining whether there is unreasonable harm to significant wildlife habitat, the department may consider proposed mitigation if that mitigation does not diminish in the vicinity of the proposed activity the overall value of significant wildlife habitat and species utilization of the habitat and if there is no specific biological or physical feature unique to the habitat that would be adversely affected by the proposed activity. For purposes of this subsection, "mitigation" means any action taken or not taken to avoid, minimize, rectify, reduce, eliminate or compensate for any actual or potential adverse impact on the significant wildlife habitat, including the following:
Sec. 9. 38 MRSA §480-E, sub-§2, as amended by PL 2007, c. 353, §10, is further amended to read:
Sec. 10. 38 MRSA §480-E-2, as enacted by PL 2007, c. 353, §11, is amended to read:
§ 480-E-2. Delegation of review authority to the Department of Health and Human Services or to a community public water system
The commissioner may delegate review authority to determine whether an activity that requires a permit because it is located within a community public water system primary protection area meets the standards in section 480-D, subsections 2 and 5 if the activity does not in whole or in part otherwise require a permit pursuant to section 480-C. The commissioner may only delegate this review authority to the drinking water program of the Department of Health and Human Services or to a community public water system that demonstrates adequate technical capacity to perform the review. If review authority is delegated, a permit from the department shall issue or deny the permit and retains is not required and the department does not retain enforcement authority.
Sec. 11. 38 MRSA §480-Q, sub-§2-D, as enacted by PL 2011, c. 205, §3, is amended to read:
(1) The replacement crossing is designed, installed and maintained to match the natural stream grade to avoid drops or perching; and
(2) As site conditions allow, crossing structures that are not open bottomed are embedded in the stream bottom a minimum of one foot or at least 25% of the culvert or other structure's diameter, whichever is greater, except that a crossing structure does not have to be embedded more than 2 feet.
For purposes of this subsection, "repair and maintenance" includes but is not limited to the riprapping of side slopes or culvert ends; removing debris and blockages within the crossing structure and at its inlet and outlet; and installing or replacing culvert ends if less than 50% of the crossing structure is being replaced. For purposes of this subsection, "existing crossing" includes but is not limited to an existing water or sewer line, culvert or natural gas pipeline.
Sec. 12. 38 MRSA §480-Q, sub-§9, as amended by PL 1989, c. 878, Pt. A, §111, is further amended to read:
Sec. 13. 38 MRSA §480-Q, sub-§17, ¶¶A to C, as enacted by PL 1995, c. 575, §1, are repealed.
Sec. 14. 38 MRSA §480-Q, sub-§17, ¶D, as enacted by PL 1995, c. 575, §1, is amended to read:
Sec. 15. 38 MRSA §480-W, sub-§3, as enacted by PL 2005, c. 548, §2, is amended to read:
If a local code enforcement officer , or state-licensed professional engineer or state-certified geologist fails to determine within 6 hours of initial contact by the property owner whether the integrity of a structure is destroyed or threatened, the property owner may proceed as if the local code enforcement officer , or state-licensed professional engineer or state-certified geologist had determined that the integrity of the structure was destroyed or threatened.
Sec. 16. 38 MRSA §480-X, sub-§4, ¶B, as enacted by PL 1995, c. 460, §7 and affected by §12, is amended to read:
SUMMARY
This bill amends the Natural Resources Protection Act in several ways.
1. It excludes artificial turf from the definition of "impervious area."
2. It amends the definition of "river, stream or brook" to provide that a channel must have all 5 of the characteristics listed in the definition. Current law requires that a channel must have at least 2 of the characteristics listed.
3. It amends the definition of "significant groundwater well" to provide that public water systems are not significant groundwater wells.
4. It increases from 20,000 to 80,000 square feet the area of aquatic vegetation, emergent marsh vegetation or open water that a freshwater wetland must contain before a person is required to get a permit from the Department of Environmental Protection for activities adjacent to the freshwater wetland.
5. It provides that a person is not required to obtain a Natural Resources Protection Act permit from the Department of Environmental Protection for the establishment or operation of a significant groundwater well for a community public water system.
6. For determining if an activity unreasonably harms habitats or fisheries, it amends the definition of "mitigation" to provide that the Department of Environmental Protection may not consider whether an adverse impact of an activity can be avoided.
7. It amends the notification and comment requirements when a resource is used by a community public water system as a source of water supply.
8. It provides that the Department of Environmental Protection may only delegate review authority to the Department of Health and Human Services, Drinking Water Program or to a community public water system when an activity is located within a community public water system primary protection area and the activity does not otherwise require a Department of Environmental Protection permit under the Natural Resources Protection Act. It also removes the requirement to obtain a permit from the Department of Environmental Protection in such cases.
9. It includes existing water or sewer lines, culverts and natural gas pipelines in the permit exemption for existing crossings.
10. It provides that a replacement of existing public works does not require a Natural Resources Protection Act permit and it provides that the public works exemption applies to outstanding river segments.
11. It amends the exemption for activities that alter less than 4,300 square feet of freshwater wetlands.
12. It removes state-certified geologists from the list of professionals that may determine whether the integrity of a seawall or similar structure in a coastal sand dune system is destroyed or threatened for purposes of repairing the seawall or structure.
13. It amends the activities that are not eligible for Tier 1 or Tier 2 review when altering freshwater wetlands.