An Act Regarding the Mapping of Shoreland Zones
Maine Legislature, Session 130, LD 0390
Committee: Environment and Natural Resources
Sponsors: PERRY
Amends: 38 MRSA §436-A, 38 MRSA §438-A

Legislative Document
No. 390
H.P. 274
House of Representatives, February 10, 2021
An Act Regarding the Mapping of Shoreland Zones
Received by the Clerk of the House on February 8, 2021.  Referred to the Committee on 
Environment and Natural Resources pursuant to Joint Rule 308.2 and ordered printed pursuant 
to Joint Rule 401.
ROBERT B. HUNT
Clerk
Presented by Representative PERRY of Calais.
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  38 MRSA §436-A, sub-§1, as amended by PL 2005, c. 330, §10, is further 
amended to read:
1.  Coastal wetlands.  "Coastal wetlands" means all tidal and subtidal lands; all lands 
with vegetation present that is tolerant of salt water and occurs primarily in a salt marine 
water or estuarine habitat; and any swamp, marsh, bog, beach, flat or other contiguous low 
land that is subject to tidal action during the highest tide level for the year in which an 
activity is proposed as identified in tide tables published by the National Ocean Service.  
Coastal wetlands A coastal wetland may include portions of coastal sand dunes.
Sec. 2.  38 MRSA §436-A, sub-§5, as amended by PL 1991, c. 346, §2, is further 
amended to read:
5.  Freshwater wetlands wetland.  "Freshwater wetlands wetland" means a freshwater 
swamps swamp, marshes marsh, bogs and bog or similar areas area, other than a forested 
wetlands wetland, which are that is:
A.  Of 10 or more contiguous acres, or of less than 10 contiguous acres and adjacent to 
a surface water body, excluding any river, stream or brook, such that, in a natural state, 
the combined surface area is in excess of 10 acres; and
B.  Inundated or saturated by surface or ground water 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 soils.
C.  Depicted on the National Wetlands Inventory maintained by the United States 
Department of the Interior, United States Fish and Wildlife Service as a Cowardin class 
palustrine emergent or palustrine scrub-shrub wetland.
Freshwater wetlands A freshwater wetland may contain small stream channels or inclusions 
of land that do not conform to the criteria of this subsection.
Sec. 3.  38 MRSA §436-A, sub-§5-A, as enacted by PL 1989, c. 838, §1, is 
amended to read:
5-A.  Forested wetland.  "Forested wetland" means a freshwater wetland dominated 
by woody vegetation that is 6 meters tall or taller and is depicted on the National Wetlands 
Inventory maintained by the United States Department of the Interior, United States Fish 
and Wildlife Service as a Cowardin class palustrine forested wetland.
Sec. 4.  38 MRSA §436-A, sub-§9-A, as amended by PL 2013, c. 320, §4, is further 
amended to read:
9-A.  Outlet stream.  "Outlet stream" means any perennial or intermittent stream, as 
shown on the most recent, highest resolution version of the national hydrography dataset 
plus available from the United States Geological Survey on the website of the United States 
Geological Survey or the national map, that flows from a freshwater wetland.
Sec. 5.  38 MRSA §436-A, sub-§11-A, as amended by PL 2013, c. 320, §5, is 
further amended to read:
11-A.  Stream.  "Stream" means a free-flowing body of water from the outlet of a great 
pond or the confluence of 2 perennial streams that is a perennial, modified Strahler 2nd-
order stream as depicted on the most recent, highest resolution version of the national 
hydrography dataset plus available from the United States Geological Survey on the 
website of the United States Geological Survey or the national map to the point where the 
stream becomes a river or where the stream meets the shoreland zone of another water body 
or wetland.  When a stream meets the shoreland zone of a water body or wetland and a 
channel forms downstream of the water body or wetland as an outlet, that channel is also a 
stream.
Sec. 6.  38 MRSA §436-A, sub-§14 is enacted to read:
14.  Tributary stream.  "Tributary stream" means any perennial or intermittent 
modified Strahler first-order stream as depicted on the most recent, highest resolution 
version of the national hydrography dataset plus available from the United States 
Geological Survey.
Sec. 7.  38 MRSA §436-A, sub-§15 is enacted to read:
15.  Wetland.  "Wetland" means lands inundated or saturated by surface or ground 
water 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 soils. "Wetland" includes any coastal, freshwater and forested wetland.
Sec. 8.  38 MRSA §438-A, sub-§1, as amended by PL 1993, c. 315, §1, is repealed 
and the following enacted in its place:
1.  Land use guidelines.  In accordance with Title 5, chapter 375, subchapter 2-A, the 
Board of Environmental Protection shall adopt rules establishing minimum guidelines for 
municipal zoning and land use controls that are designed to carry out the legislative 
purposes described in section 435 and the provisions of this article.  Minimum guidelines 
established by the board must:
A.  Include an exemption from the requirement for a municipal permit for the repair 
and maintenance of an existing road culvert or for the replacement of an existing road 
culvert, as long as the replacement culvert is not more than 25% longer than the culvert 
being replaced, and not longer than 75 feet. Ancillary culverting activities, including 
excavation and filling, are included in this exemption. A person repairing, replacing or 
maintaining an existing culvert under this paragraph shall ensure that erosion control 
measures are taken to prevent sedimentation of the water and that the crossing does not 
block fish passage in the water course;
B.  Include provisions governing building and structure size, setback and location and 
establishment of resource protection, general development, limited residential, 
commercial fisheries and maritime activity zones and other zones;
C.  Prescribe uses that may be allowed in each zone with or without conditions;
D.  Establish criteria for the issuance of permits and nonconforming uses, land use 
standards and administrative and enforcement procedures;
E.  Include a requirement for a person issued a permit pursuant to this article in a great 
pond watershed to have a copy of the permit on site while work authorized by the 
permit is being conducted;
F.  Include clear and operable language that references widely available and best 
available datasets and is designed to facilitate modeling in a geographic information 
system and for enforcement purposes by municipal officials;
G.  Define terms necessary for geographic information system modeling, including 
"contiguous," "adjacent," "surficially connected" and other similar operational terms;
H.  Include selection distances for use in a geographic information system and field 
surveys; and
I.  Exclude from the resource protection zone lots where less than 2,500 square feet of 
the lot would be zoned as resource protection.
The board shall comprehensively review and update its rules adopted pursuant to this 
subsection and shall reevaluate and update the rules at least once every 4 years.  Rules 
adopted pursuant to this subsection are routine technical rules as defined in Title 5, chapter 
375, subchapter 2-A.
SUMMARY
This bill amends existing definitions and adds additional definitions related to the 
zoning of shoreland areas. It also adds further requirements for minimum guidelines for 
municipal zoning and land use controls adopted by the Board of Environmental Protection 
including: the use of clear and operable language that references widely available and best 
available datasets, specifically for modeling in a geographic information system and for 
enforcement purposes by municipal officials; the addition of defined terms "contiguous," 
"adjacent," "surficially connected" and other similar operational terms; the selection 
distances for use in geographic information systems and field surveys; and the exclusion 
from the resource protection zone lots where less than 2,500 square feet of the lot would 
be zoned as resource protection.