An Act To Expand the Natural Resources Protection Act Compensation Program
Maine Legislature, Session 123, LD 2223
Committee: Natural Resources
Amends: 38 MRSA §480-Z

Legislative Document 
No. 2223 
H.P.1589 
House of Representatives, February 26, 2008 
An Act To Expand the Natural Resources Protection Act 
Compensation Program 
Reported by Representative KOFFMAN of Bar Harbor for the Joint Standing Committee 
on Natural Resources pursuant to Public Law 2007, chapter 290, section 17. 
Reference to the Committee on Natural Resources suggested and ordered printed under 
Joint Rule 218. 
Prinled on recycled paper 
'IJ1~ 1J7.17ldC~ 
MILLICENT M. MacFARLAND 
Clerk 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 38 MRSA §480-Z, as amended by PL 2005, c. 592, §§3 and 4, is further 
amended to read: 
§480-Z. Compensation 
The department may establish a program providing for compensation of unavoidable 
freshwater or coastal wetlafld losses to an area listed in subsection 7 due to a proposed 
activity. 
Compensation must include the restoration, enhancement, creation or 
preservation of wetlaflds an area or areas that have functions or values similar to the 
wetlaflds area impacted by the activity, unless otherwise approved by the department. 
Preservation may include protection of uplands adjacent to INetlaflds an area. 
II 
The department may require that compensation include the design, implementation 
and maintenance of a compensation project or, in lieu of such a project, may allow the 
applicant to purchase credits from a mitigation bank or to pay a compensation fee. If 
compensation is required, the completion and maintenance of a project, purchase of 
credits or payment of a compensation fee must be a condition of the permit. 
The department shall identify an appropriate project, or determine the amount of 
credits or compensation fee, based upon the compensation that would be necessary to 
restore, enhance, create or preserve wetlaflds areas with functions or values similar to the 
It't'etlaflds areas impacted by the activity. 
However, the department may allow the 
applicant to conduct a project of equivalent value, or allow the purchase of credits or 
payment of a compensation fee of equivalent value, to be used for the purpose of 
restoring, enhancing, creating or preserving other wetlafld functions or values of the area 
that are environmentally preferable to the functions and values impacted by the activity, 
as determined by the department. The loss of functions or values of one type of area may 
not be compensated for by the restoration, enhancement, creation or preservation of 
another type of area. +he For example, the loss of functions or values of a coastal 
wetland may not be compensated for by the restoration, enhancement, creation or 
preservation of freshwater wetland functions or values. 
A project undertaken pursuant to this section must be approved by the department. 
The department shall base its approval of a wetlands compensation project on the wetland 
management priorities identified by the department for the watershed or biophysical 
region in which the project is located. 
The department shall base its approval of a 
compensation project concerning an area listed in subsection 7, paragraph C, 0 or E on 
the management priorities identified by the department for the type of habitat. 
The 
department may not approve a compensation project for unavoidable losses to an area 
until the applicant has complied with all other applicable provisions of this article and all 
applicable rules adopted by the department pursuant to this article. For purposes of this 
section, "biophysical region" means a region with shared characteristics of climate, 
geology, soils and natural vegetation. 
1. Location of project. A compensation project must be located on or adjacent to 
the project site, unless otherwise approved by the department. A compensation project 
Page I - 123LR3S10(Ol)-1 
must be located in the same watershed as the wetlaflds area affected by the activity unless 
the department determines, based on regional hydrological or ecological priorities, that 
there is a scientific justification for locating the compensation project outside of the same 
watershed. 
2. Approval of mitigation bank. A mitigation bank from which any credits are 
purchased must be approved by the department consistent with all applicable federal rules 
and regulations. 
3. 
Compensation fee program. 
The department may develop a wetlands 
compensation fee program for the areas listed in subsection 7, paragraphs A and B in 
consultation with the State Planning Office, the United States Army Corps of Engineers 
and state and federal resource agencies, including the United States Fish and Wildlife 
Service and the United States Environmental Protection Agency. The department may 
develop a compensation fee program for the areas listed in subsection 7, paragraphs C, D 
and E in consultation with the Department of Inland Fisheries and Wildlife. 
A. The program may include the following: 
(1) 
Identification of wetland management priorities on a watershed or 
biophysical region basis; 
(I-A) Identification of management priorities for the areas listed in subsection 7, 
paragraphs C, D and E; 
(2) Identification of the types of '+'t'etlafld losses eligible for compensation under 
this subsection; 
(3) Standards for compensation fee projects; 
(4) Calculation of compensation fees based on the functions and values of the 
affected '+'t'etlands areas and the cost of compensation, taking into account the 
potential higher cost of compensation when a project is implemented at a later 
date; and 
(5) Methods to evaluate the long-term effectiveness of compensation fee projects 
implemented under this subsection in meeting the wetland management priorities 
identified pursuant to subparagraph subparagraphs (I) and (I-A). 
B. 
Any compensation fee may be paid into a '+'t'etlands compensation fund 
established by the department as provided in subparagraph (I) or to an organization 
authorized by the department as provided in subparagraph (2). 
A compensation 
project funded in whole or in part from compensation fees must be approved by the 
department. 
(1) The department may establish a wetlands compensation f.u.OO funds for the 
purpose of receiving compensation fees, grants and other related income. +he 
'+'t'etlands A compensation fund must be a fund dedicated to payment of costs and 
related expenses of "'let land restoration, enhancement, preservation and creation 
projects. The department may make payments from the fund consistent with the 
purpose of the fund. Income received under this subsection must be deposited 
with the State Treasurer to the credit of the wetlands compensation fund and may 
be invested as provided by law. Interest on these investments must be credited to 
the wetlands compensation fund. 
(2) The department may enter into an enforceable, written agreement with a 
public, quasi-public or municipal organization or a private, nonprofit 
organization for the protection of wetlands and other natural areas. 
Such an 
organization must demonstrate the ability to receive compensation fees, 
administer a 'Netlands compensation fund and ensure that compensation projects 
S 
are implemented consistent with local, regional or state wetland management 
priorities for the watershed in which the project is located. If compensation fees 
are provided to an authorized organization, the organization shall maintain 
records of expenditures and provide an annual summary report as requested by 
the department. 
If the authorized agency is a state agency other than the 
department, the agency shall establish a fund meeting the requirements specified 
in subparagraph (1). If the organization does not perform in accordance with this 
subsection or with the requirements of the written agreement, the department may 
revoke the organization'S authority to conduct activities in accordance with this 
subsection. 
IS 
Rules adopted pursuant to this subsection are routine technical rules under Title 5, chapter 
375, subchapter 2-A. 
4. Relationship to other provisions. The purchase of credits from a mitigation 
bank or the payment of a compensation fee in no way relieves the applicant of the 
requirement to comply with any other provision of this article, including, but not limited 
to, the requirement to avoid or minimize effects on wetlands and water quality to the 
greatest extent practicable under section 4S0-X. 
7. Areas. As used in this section, "area" includes: 
A. Freshwater wetlands; 
B. Coastal wetlands; 
C. Significant vernal pool habitat; 
D. High and moderate value waterfowl and wading bird habitat, including nesting 
and feeding areas; and 
E. Shorebird nesting, feeding and staging areas. 
SUMMARY 
This bill expands the section of the Natural Resources Protection Act concerning 
compensation for unavoidable impacts to freshwater and coastal wetlands to also address 
compensation for unavoidable impacts to significant vernal pool habitat, high and 
moderate value waterfowl and wading bird habitat and shorebird nesting, feeding and 
staging areas.