1. Prohibition. A person may not perform or cause to be performed any activity listed in subsection 2 without first obtaining a permit from the department if the activity is located in, on or over any protected natural resource or is located adjacent to and operated in such a manner that material or soil may be washed into any of the following:

A. A coastal wetland, great pond, river, stream or brook or significant wildlife habitat contained within a freshwater wetland; or

B. Freshwater wetlands consisting of or containing:

(1) Under normal circumstances, at least 20,000 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. 3. 38 MRSA §480-D, sub-§3, as amended by PL 1993, c. 296, §2, is further amended to read:

3. Harm to habitats; fisheries. The activity will not unreasonably harm any significant wildlife habitat, freshwater wetland plant habitat, threatened or endangered plant habitat, aquatic or adjacent upland habitat, travel corridor, freshwater, estuarine or marine fisheries or other aquatic life.

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:

A. Avoiding an impact altogether by not taking a certain action or parts of an action;

B. Minimizing an impact by limiting the magnitude, duration or location of an activity or by controlling the timing of an activity;

C. Rectifying an impact by repairing, rehabilitating or restoring the affected environment;

D. Reducing or eliminating an impact over time through preservation and maintenance operations during the life of the project; or

E. Compensating for an impact by replacing the affected significant wildlife habitat.

Sec. 4. 38 MRSA §480-Q, sub-§7-A, as amended by PL 2001, c. 431, §6, is repealed.

Sec. 5. 38 MRSA §480-Q, sub-§7-B is enacted to read:

7-B.__Forestry.__Forestry management activities, including associated road construction or maintenance, in or adjacent to protected natural resources as long as the activities comply with rules containing statewide standards for timber harvesting in shoreland areas administered by the Department of Conservation, Maine Forest Service.__This exemption does not apply to a road constructed in freshwater wetlands when used to access development as a result of a change in land use following a timber harvest unless the road is removed and the site restored to its prior natural condition;

Sec. 6. 38 MRSA §480-Q, sub-§§23, 24 and 25 are enacted to read:

23.__Cutting or clearing subject to mandatory shoreland zoning laws.__Cutting or clearing of upland vegetation adjacent to those protected natural resources listed in section 480-C, subsection 1, paragraphs A or B for a purpose other than forest management as long as:

A.__The cutting or clearing is subject to the jurisdiction of a municipality pursuant to chapter 3, subchapter I, article 2-B; or

B.__If the cutting or clearing is not subject to the jurisdiction of a municipality pursuant to chapter 3, subchapter I, article 2-B, vegetation within the adjacent area is maintained as follows:

(1)__There is no cleared opening greater than 250 square feet in the forest canopy as measured from the outer limits of the tree crown, except that a footpath may be constructed for the purpose of access to water if it does not exceed 6 feet in width as measured between tree trunks and has at least one bend in its path to divert channelized runoff;

(2)__Any selective cutting of trees within the buffer strip leaves a well-distributed stand of trees and other natural vegetation.

(a)__For the purposes of this subparagraph, a "well-distributed stand of trees and other natural vegetation" is defined as maintaining a rating score of 8 or more points in a 25-foot by 25-foot square area as determined by the following rating system.

(i)__A tree with a diameter at 4 1/2 feet above ground level of 2 to 4 inches has a point value of one.

(ii)__A tree with a diameter at 4 1/2 feet above ground level of more than 4 inches and up to and including 12 inches has a point value of 2.

(iii)__A tree with a diameter at 4 1/2 feet above ground level of more than 12 inches has a point value of 4.

(b)__In applying this point system:

(i)__The 25-foot by 25-foot square plots must be established where the landowner or lessee proposes clearing within the required buffer;

(ii)__Each successive plot must be adjacent to, but may not overlap, a previous plot;

(iii)__Any plot not containing the required points may have no vegetation removed except as otherwise allowed by this subsection; and

(iv)__Any plot containing the required points may have vegetation removed down to the minimum points required or as otherwise allowed by this subsection;

(3)__In addition to the requirements of subparagraph (2), no more than 40% of the total volume of trees 4 inches or more in diameter, measured 4 1/2 feet above ground level, is selectively cut in any 10-year period;

(4)__In order to protect water quality and wildlife habitat, existing vegetation under 3 feet in height and other ground cover is not removed except for construction of a footpath as provided in subparagraph (1);

(5)__Tree branches are not pruned except on the bottom 1/3 of the tree as long as tree vitality will not be adversely affected; and

(6)__In order to maintain a buffer strip of vegetation, when the removal of storm-damaged, diseased, unsafe or dead trees results in the creation of cleared openings in excess of 250 square feet, these openings are replanted with native tree species unless there is existing new tree growth.

Cleared openings legally in existence on September 1, 2002 may be maintained but may not be enlarged.

This subsection applies to an area with vegetation composed primarily of shrubs, trees or other woody vegetation without regard to whether the area was previously cut or cleared;

24.__Existing lawns and gardens.__Maintenance, but not enlargement of, lawns and gardens in existence on September 1, 2002 that are adjacent to a river, stream or brook not regulated by a municipality under chapter 3, subchapter I, article 2-B; and

25.__Existing agricultural fields and pastures.__Maintenance, but not enlargement of, agricultural fields and pastures in existence on September 1, 2002 that are adjacent to a river, stream or brook not regulated by a municipality under chapter 3, subchapter I, article 2-B.

Emergency clause. In view of the emergency cited in the preamble, this Act takes effect when approved.

FISCAL NOTE

The implementation of certain statutory provisions pertaining to the cutting and removal of vegetation will result in insignificant increases of dedicated revenue to the Maine Environmental Protection Fund within the Department of Environmental Protection from additional application fees.

SUMMARY

This bill is the unanimous report of the Joint Standing Committee on Natural Resources and is reported pursuant to Resolve 1999, chapter 116.

This bill makes changes to the natural resources protection laws administered by the Department of Environmental Protection to provide the necessary statutory basis for major substantive rules to be adopted by the department that regulate the cutting and removal of vegetation, other than timber harvesting activities, in areas adjacent to protected natural resources. This bill is an emergency to ensure that the statutory changes take effect prior to the effective date of the major substantive rules approved earlier this session.