Resolve, Regarding Legislative Review of Portions of Chapter 335: Significant Wildlife Habitat, a Major Substantive Rule of the Department of Environmental Protection
Maine Legislature, Session 122, LD 1981
Committee Amendment CA_A_H883 (House)

COMMITTEE AMENDMENT ,~" to H.P. 1388, L.D. 1981, "Resolve, Regarding 
Legislative Review of Portions of Chapter 335: Significant Wildlife Habitat, a Major 
Substantive Rule of the Department of Environmental Protection" 
Amend the resolve by striking out all of section 1 (page 1, lines 14 to 18 in L.D.) and 
inserting in its place the following: 
'Sec. 1. Adoption. Resolved: That final adoption of portions of Chapter 335: 
Significant Wildlife Habitat, a provisionally adopted major substantive rule of the 
Department of Environmental Protection that has been submitted to the Legislature for 
review pursuant to the Maine Revised Statutes, Title 5, chapter 375, subchapter 2-A, is 
authorized only if the rule is amended as follows: 
1. Language is added to define the term "practicable" to mean available and feasible 
considering cost, existing technology and logistics based on the overall purpose of the 
project; 
2. Language is amended to provide that the Department of Environmental Protection 
may require that construction activities occur during a time when impacts on protected 
habitats, wildlife, fisheries and aquatic life will be minimized; 
3. 
Language is amended to remove from the rule the requirement that a 
preapplication and presubmission meeting and an individual permit under the natural 
resources protection laws under the Maine Revised Statutes, Title 38 are required for any 
activity that takes place in, on or over a significant wildlife habitat, or adjacent to a 
significant wildlife habitat contained within a freshwater wetland. A note must remain in 
the rules that activities requiring a permit are described in Title 38, section 480-C and that 
exemptions are described in Title 38, section 480-Q; 
4. Language is amended to require a narrative describing whether a practicable 
alternative to an alteration exists that would be less damaging to the environment and 
what alternatives were considered during the project design; 
5. Language is amended to require a narrative of the site description and impact 
instead of a report; 
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COMMITTEE AMENDMENT '~" to H.P. 1388, L.D. 1981 
6. Language is added to indicate that maps of seabird nesting islands are available 
from either the Department of Environmental Protection or the Department of Inland 
Fisheries and Wildlife; 
7. A notation is amended to provide that tracking studies of adult pool-breeding 
amphibians have shown that they can travel over 113 mile away from their breeding pool; 
8. A notation is added to provide that more information on identifying vernal pools is 
available in the 2003 publication of the Maine Audubon Society titled "Maine Citizens' 
Guide to Locating and Documenting Vernal Pools" or in the Department of 
Environmental Protection's fact sheet titled "Locating and Documenting Significant 
Vernal Pools"; 
9. Language is added to provide that examples of vernal pool-dependent state-listed 
endangered or threatened species include, but are not limited to, Blanding's turtle, spotted 
turtles and boghaunter dragonflies; 
10. A notation is added to provide that if additional rare indicator species are present, 
they are likely to be associated with a significant vernal pool from early spring through 
September and that additional rare indicator species include ribbon snakes, wood turtles 
and four-toed salamanders; 
11. A notation is amended to provide that optimal times for counting egg masses of 
pool-breeding amphibians vary according to geographic location and weather; 
12. Language is amended to provide that: 
A. 
An individual may voluntarily submit documentation to the Department of 
Environmental Protection or the Department of Inland Fisheries and Wildlife 
regarding the significance of a vernal pool on that individual's property; 
B. Documentation must be completed by an individual who has experience and 
training in either wetland ecology or wildlife ecology, and therefore has 
qualifications sufficient to identify and document a significant vernal pool, or the 
documentation must be field-verified by either the Department of Environmental 
Protection or the Department of Inland Fisheries and Wildlife prior to its inclusion on 
a geographic information system data layer maintained by either the Department of 
Inland Fisheries and Wildlife or the Department of Environmental Protection; and 
C. A landowner will receive written confirmation of such documentation from the 
department; 
13. Language is added regarding verification of significance that provides that: 
A. A significant vernal pool documented on a geographic information system data 
layer maintained by either the Department of Inland Fisheries and Wildlife or the 
Department of Environmental Protection is eligible for removal from that data layer 
following verification by the Department of Inland Fisheries and Wildlife of 3 
consecutive years of data demonstrating that a vernal pool no longer meets the 
criteria in the rules regarding abundance and rarity; 
B. A written request to remove a significant vernal pool from the data layer must be 
submitted to both the Department of Inland Fisheries and Wildlife and the 
Department of Environmental Protection and include documentation made during the 
COMMITTEE AMENDMENT 
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COMMITTEE AMENDMENT ,A, to H.P. 1388, L.D. 1981 
identification period by an individual who has experience and training in either 
wetland ecology or wildlife ecology and therefore has qualifications sufficient to 
identify and document the presence or absence of a significant vernal pool; and 
C. A written department determination that a vernal pool is not significant remains 
valid regardless of time frame; 
14. That section of the rule that deals with the department's providing a written field 
determination regarding the presence or absence of a significant vernal pool habitat is 
amended and included in the section of the rule dealing with when a permit is not 
required; 
15. Language is added regarding habitat management standards for significant vernal 
pools that provides that if more than 25% of the critical terrestrial habitat has been 
previously developed, restoring a portion of that area through supplemental planting or 
regrowth of native forest species may be considered toward meeting the habitat 
management standards or toward standards for avoidance, minimization or compensation. 
The language must also provide that developed area includes disturbed areas excluding 
areas that are returned to a condition with the same drainage patterns and the same or 
improved cover type that existed prior to the disturbance. The language must also 
provide that to the greatest extent practicable, the following management practices must 
be followed within a significant vernal pool habitat: 
A. Cause no disturbance within the vernal pool depression; 
B. Maintain a minimum of 75% of the critical terrestrial habitat as unfragmented 
forest with at least a partly closed canopy of overstory trees to provide shade, deep 
litter and woody debris; 
C. Maintain or restore forest corridors connecting wetlands and significant vernal 
pools; 
D. Minimize forest floor disturbance; and 
E. Maintain native understory vegetation and downed woody debris; 
16. Language is added to provide that: 
A. An activity occurring in, on, over or adjacent to a significant vernal pool or a 
potential significant vernal pool is eligible for permit by rule as described in the 
Department of Environmental Protection rule, chapter 305, section 19, provided that 
the habitat management standards are met; 
B. An applicant submitting a permit-by-rule notification is not required to provide a 
seasonal assessment of significance; 
C. Submission of a permit-by-rule notification does not negate an applicant's ability 
to submit subsequent documentation to verify or negate application of the section of 
the rule dealing with significant vernal pools provided that documentation is 
completed during the identification period by an individual who has experience and 
training in either wetland ecology or wildlife ecology; 
D. Geographic information system data points specific to permit by rule will be 
uploaded to the geographic information system data layer maintained by the 
Department of Inland Fisheries and Wildlife only following submission and 
COMMITTEE AMENDMENT 
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COMMITTEE AMENDMENT ;/1' to H.P. 1388, L.D. 1981 
verification of such documentation by the Department of Environmental Protection or 
the Department of Inland Fisheries and Wildlife; and 
E. The permit-by-rule provisions do not apply to an activity that is not or will not be 
in compliance with the terms and conditions of a permit issued under the site location 
of deVelopment law, the storm water management law or the natural resources 
protection law; 
17. Language is added to include the following circumstances under which a permit 
is not required for activities in, on, over or adjacent to a significant vernal pool: 
A. If, upon request from a landowner, the Department of Environmental Protection 
staff provides a written field determination or advisory opinion regarding the 
presence or absence of a significant vernal pool, a landowner acting on that 
determination or advisory opinion by carrying out an activity subsequently found to 
be in violation is not required to obtain a permit for that activity and will not be 
subject to enforcement action if jurisdiction or a penalty would be based solely on 
that activity; and 
B. Construction of overhead communications and electric lines, poles, guy anchors 
and related overhead infrastructure located within a public or private right-of-way, 
within 25 feet of the edge of the road right-of-way or within an existing clearing 
created for a public or private road does not require a permit provided that poles are 
not placed within a significant verna~ pool depression; . 
18. Language is added to provide that the provisions of the rule regarding activities 
in, on, over or adjacent to a significant vernal pool may not be enforced or implemented 
until September 1, 2007; 
19. 
Language is added to provide that high- and moderate-value waterfowl and 
wading bird habitats subject to the rules are depicted on a geographic information system 
data layer maintained by the Department of Inland Fisheries and Wildlife and are 
available from either the Department of Inland Fisheries and Wildlife or the Department 
of Environmental Protection; 
20. Language is added regarding the verification of habitat value for high- and 
moderate-value waterfowl and wading bird habitat that provides that: 
A. 
An individual may voluntarily submit documentation to the Department of 
Environmental Protection or the Department of Inland Fisheries and Wildlife 
regarding the value of a waterfowl and wading bird habitat on that individual's 
property; 
B. Documentation must be completed by an individual who has experience and 
training in either wetland ecology or wildlife ecology, and therefore has 
qualifications sufficient to identify and document a high- or moderate-value 
waterfowl and wading bird habitat, or the documentation must be field-verified by the 
Department of Inland Fisheries and Wildlife; 
C. Following review of the documentation, the Department of Inland Fisheries and 
Wildlife may modify the boundary of a high- or moderate-value waterfowl and 
wading bird habitat depicted on the applicable geographic information system data 
layer; and 
COMMITTEE AMENDMENT 
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COMMITTEE AMENDMENT 71 to H.P. 1388, L.D. 1981 
D. A landowner will receive written confirmation of the documentation from the 
Department of Environmental Protection; 
21. The section regarding department determinations of high- and moderate-value 
waterfowl and wading bird habitat in the provisionally adopted rule is deleted and 
replaced with a provision that provides that if, upon request from a landowner, the 
Department of Environmental Protection staff provides a written field determination or 
advisory opinion regarding the presence or absence of a high- or moderate-value 
waterfowl and wading bird habitat, a landowner acting on that determination or advisory 
opinion by carrying out an activity subsequently found to be in violation is not required to 
obtain a permit for that activity and will not be subject to enforcement action if 
jurisdiction or a penalty would be based solely on that activity; 
22. Language is added to provide that high- and moderate-value shorebird habitats 
subject to the rule are depicted on a geographic information system data layer maintained 
by the Department of Inland Fisheries and Wildlife and available from either the 
Department of Inland Fisheries and Wildlife or the Department of Environmental 
Protection; 
23. 
Language is added regarding the verification of habitat value for shorebird 
nesting, feeding and staging areas that provides that: 
A. 
An individual may voluntarily submit documentation to the Department of 
Environmental Protection or the Department of Inland Fisheries and Wildlife 
regarding the value of a shorebird nesting, feeding or staging area; 
B. Documentation must be completed by an individual who has experience and 
training in either wetland ecology or wildlife ecology, and therefore has 
qualifications sufficient to identify and document a high- or moderate-value shorebird 
nesting, feeding or staging area, or the documentation must be field-verified by the 
Department of Inland Fisheries and Wildlife; 
C. Following review of the documentation, the Department of Inland Fisheries and 
Wildlife may modify the boundary of a high- or moderate-value shorebird nesting, 
feeding or staging area depicted on the applicable geographic information system 
data layer; and 
D. A landowner will receive written confirmation of the documentation from the 
Department of Environmental Protection; and 
24. The section regarding department determinations of shorebird nesting, feeding 
and staging areas in the provisionally adopted rule is deleted and replaced with a 
provision that provides that if, upon request from a landowner, the Department of 
Environmental Protection staff provides a written field determination or advisory opinion 
regarding the presence or absence of a high- or moderate-value shorebird nesting, feeding 
or staging area, a landowner acting on that determination or advisory opinion by carrying 
out an activity subsequently found to be in violation is not required to obtain a permit for 
that activity and will not be subject to enforcement action if jurisdiction or a penalty 
would be based solely on that activity; and be it further 
Sec. 2. 
Implementation date; significant vernal pool habitat rule. 
Resolved: That the provisions regarding the regulation of activities in, on, over or 
COMMITTEE AMENDMENT 
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COMMITTEE AMENDMENT~" to H.P. 1388, L.D. 1981 
adjacent to a significant vernal pool habitat in the rule authorized pursuant to this resolve 
may not be implemented prior to September 1, 2007. The Department of Environmental 
Protection may not require a permit for an activity that takes place in, on, over or adjacent 
to a significant vernal pool habitat pursuant to the Maine Revised Statutes, Title 38, 
chapter 3, subchapter 1, article 5-A prior to September 1,2007; and be it further 
Sec. 3. Report; significant wildlife habitat rules. Resolved: 
That, by 
January 1,2009, the Department of Environmental Protection shall submit a report on the 
implementation of Chapter 335: Significant Wildlife Habitat Rules to the joint standing 
committee of the Legislature having jurisdiction over natural resources matters. The 
report must include, but is not limited to: 
1. The number of field determinations requested under the rule and the number of 
field determinations completed; 
2. The number of individual permit applications received under the rule and the 
department's response to and status ofthose applications; 
3. 
The number of permit-by-rule notifications regarding significant vernal pool 
habitats received by the department; 
4. 
The number of permit-by-rule notifications regarding significant vernal pool 
habitats that required individual permits; 
5. 
The number and type of voluntary identifications of significant vernal pool 
habitats submitted to the department and the department's response to those voluntary 
identifications; and 
6. Public education and outreach provided by the department; and be it further 
Sec. 4. Authority to report out legislation. Resolved: That the joint standing 
committee of the Legislature having jurisdiction over natural resources matters may 
report out legislation relating to the significant wildlife habitat rules report submitted 
pursuant to section 3 of this· resolve to the First Regular Session of the 124th Legislature.' 
SUMMARY 
This amendment authorizes final adoption of Chapter 335: Significant Wildlife 
Habitat Rules, a provisionally adopted major substantive rule of the Department of 
Environmental Protection that has been submitted to the Legislature for review pursuant 
to the Maine Revised Statutes, Title 5, chapter 375, subchapter 2-A, if certain specified 
changes are made to the rule. The amendment also provides an implementation date of 
September 1, 2007 for the provisions of the rule regarding significant vernal pool 
habitats. It also requires the Department of Environmental Protection to report on the 
implementation of the significant wildlife habitat rules to the joint standing committee of 
the Legislature having jurisdiction over natural resources matters by January 1, 2009. 
The joint standing committee of the Legislature having jurisdiction over natural resources 
matters is authorized to report out legislation relating to the report to the First Regular 
Session of the 124th Legislature. 
FISCAL :\OTE REQUIRED 
(See attaChed) 
COMMITTEE AMENDMENT 
Approved: 03/23/06 ~ac::.. 
LD 1981 
LR3109(02) 
Resolve, Regarding Legislative Review of Portions of Chapter 335: Significant Wildlife Habitat, a 
Major Substantive Rule of the Department of Environmental Protection 
Fiscal Note for Bill as Amended by Committee Amendment ,~ " 
Committee: ' Natural Resources 
Fiscal Note Required: Yes 
Fiscal Note 
Minor cost increase - General Fund 
LR3109(2) - Fiscal Note - Page 1 of 1