Section 096-335-3 - General standards applicable to all activitiesA.Avoidance. An activity that would degrade the significant wildlife habitat, disturb the subject wildlife, or affect the continued use of the significant wildlife habitat by the subject wildlife, either during or as a result of the activity, will be considered to have an unreasonable impact if there is a practicable alternative to the project that would be less damaging to the environment. B. Minimal alteration. Alteration of the habitat and disturbance of subject wildlife must be kept to the minimum amount necessary by, among other methods, minimizing the size of the alteration, the duration of the activity, and its proximity to the significant wildlife habitat and subject wildlife. Temporary structures must be used instead of permanent structures wherever possible when they would be more protective of the significant wildlife habitat or subject wildlife. C.No unreasonable impact. Even if the activity 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 protected natural resources or the subject wildlife. "Unreasonable impact" means that one or more of the standards of the NRPA at 38 M.R.S.A. §480-D will not be met. In making this determination, the department considers the area of the significant wildlife habitat affected by the activity, including areas beyond the physical boundaries of the project and the cumulative effects of frequent minor alterations of significant wildlife habitats. In order to meet the "harm to habitats; fisheries" standard at 38 M.R.S.A. §480-D(3), the following requirements must be met.
(1) Unreasonable degradation, disturbance, or effect. The activity may not unreasonably degrade the significant wildlife habitat, unreasonably disturb subject wildlife, or unreasonably affect the continued use of the site by the subject wildlife. A specific impact may require mitigation on-site or within close proximity to the affected significant wildlife habitat in order to lessen the severity of the impact. For example, altering a portion of a shorebird feeding area that is providing critical habitat for migratory shorebirds will likely require mitigation on-site to ensure that potential effects of the proposed activity are reduced. Mitigation methods may include the implementation of a buffer enhancement plan, deed restriction or other methods as determined by the department.
(2) Timing. The department may require that construction activities occur during a time when impacts on protected habitats, wildlife, fisheries and aquatic life will be minimized, such as outside of any critical nesting or breeding periods or similar critical periods, depending on the specific habitat and species. For example, an activity that could potentially cause sedimentation, such as excavation, may not be carried out during times of the year when fish are spawning. This requirement must be met unless the work can only practically be completed at that time, and it is determined by the department that the impacts to the protected natural resource will be short term, and will not result in permanent harm to fish, wildlife, or marine resources. D.Compensation. Compensation is the off-setting of a lost habitat function with a function of equal or greater value. The goal of compensation is to achieve no net loss of habitat functions and values. Every case where compensation may be required is unique due to differences in habitat type and geographic location. For this reason, the method, location, and amount of compensation work necessary is variable. (1) When required. Compensation is required when the department determines that an impact to significant wildlife habitat will cause habitat functions or values to be lost or degraded as identified by the department. This determination may be based on the department's or the Department of Inland Fisheries & Wildlife's evaluation of the project, which may include an evaluation of appropriate information from other sources. (2) Types of compensation. Compensation may include one or more of the following methods. (a) A compensation project may be required by the department. Habitat compensation may include the restoration, enhancement or preservation of in-kind significant wildlife habitat or uplands or wetlands adjacent to such habitat. The site of the compensation project must provide significant wildlife habitat functions that might otherwise be degraded by unregulated activity, be located within the affected habitat or within similar habitat located within close proximity to the affected habitat, and the site must be preserved. If habitat priorities have been established at a local, regional or state level, the applicant shall consider those priorities in devising a compensation plan. Directional buffers may also be used in some instances to off-set impacts. (b) In lieu of a compensation project, wholly or in part, payment of a compensation fee into the "Natural Resources Mitigation Fund" may be allowed by the department. The department is authorized to develop an in lieu fee compensation fee program for use in cases of impacts to certain types of significant wildlife habitat. See 38 M.R.S.A. §480-Z(3). (3) Compensation amounts. The amount of compensation required to replace lost functions depends on a number of factors including: the type of habitat to be altered; the size of the alteration activity; the functions of the habitat to be altered; and the type of compensation to be used. Compensation as described in Section 3(D)(2)(a) must meet the following ratios of square footage or acreage at a minimum (area restored, enhanced, created or preserved/area impacted), unless the department finds that a different ratio is appropriate to directly off-set habitat functions to achieve an equal or higher net benefit for habitat: (a) 2:1 for restoration, enhancement, or creation; (b) 8:1 for preservation, including adjacent upland or wetland habitat. (4) Waiver. The department may waive the requirement for an assessment of habitat functions and values, compensation, or both. The department may waive the requirement for an assessment of the habitat if the department already possesses the information necessary to determine the functions and values of the area proposed to be altered. The department may waive the requirement for compensation if it determines that the impact to habitat functions and values from the activity will be insignificant. E.Seasonal factors. When determining the significance of a wildlife habitat or impact from a proposed activity, seasonal factors and events that temporarily reduce the numbers and visibility of plants or animals, or obscure the topography and characteristics of a habitat such as a period of high water, snow and ice cover, erosion event, or drought are taken into account. Determinations may be deferred for an amount of time necessary to allow assessment of the resource without such seasonal factors. 06-096 C.M.R. ch. 335, § 3