38 §480-Q. Activities for which a permit is not required
Title 38: WATERS AND NAVIGATION
Chapter 3: PROTECTION AND IMPROVEMENT OF WATERS
Subchapter 1: ENVIRONMENTAL PROTECTION BOARD
Article 5-A: NATURAL RESOURCES PROTECTION ACT HEADING: PL 1987, C. 809, §2 (NEW); 2007, C. 290, §14
§480-Q. Activities for which a permit is not required
A permit is not required for the following activities if the activity takes place solely in the area specified below: [1987, c. 809, §2 (NEW).]
1. Water lines and utility cables. In an area which affects a great pond, the placement of water lines to serve a single-family house or the installation of cables for utilities, such as telephone and power cables, provided that the:
A. Excavated trench for access to the water is backfilled and riprapped to prevent erosion; [1987, c. 809, §2 (NEW).]
B. Excavated trench on the landward side of the riprapped area is seeded and mulched to prevent erosion; and [1987, c. 809, §2 (NEW).]
C. Bureau of Parks and Lands has approved the placement of the cable across the bottom of the great pond to the extent that it has jurisdiction; [1989, c. 878, Pt. A, §110 (AMD); 1995, c. 502, Pt. E, §30 (AMD).]
[ 1989, c. 878, Pt. A, §110 (AMD); 1995, c. 502, Pt. E, §30 (AMD) .]
2. Maintenance and repair. Maintenance and repair of a structure in, on, over or adjacent to a protected natural resource and maintenance and repair of a private crossing of a river, stream or brook if:
A. Erosion control measures are taken to prevent sedimentation of the water; [1995, c. 27, §1 (RPR).]
B. Crossings do not block passage for fish or other aquatic organisms in water courses. Culverts and installation techniques utilized must achieve natural stream flow. This paragraph applies only to water courses containing fish; [2009, c. 460, §1 (AMD).]
C. There is no additional intrusion into the protected natural resource; and [1995, c. 27, §1 (RPR).]
D. The dimensions of the repaired structure do not exceed the dimensions of the structure as it existed 24 months prior to the repair, or if the structure has been officially included in or is considered by the Maine Historical Preservation Commission eligible for listing in the National Register of Historic Places, the dimensions of the repaired structure do not exceed the dimensions of the historic structure. [1995, c. 27, §1 (RPR).]
This subsection does not apply to: the repair of more than 50% of a structure located in a coastal sand dune system; the repair of more than 50% of a dam, unless that repair has been approved by a representative of the United States Natural Resources Conservation Service; or the repair of more than 50% of any other structure, unless the municipality in which the proposed activity is located requires a permit for the activity through an ordinance adopted pursuant to the mandatory shoreland zoning laws and the application for a permit is approved by the municipality;
[ 2009, c. 460, §1 (AMD) .]
2-A. Existing road culverts. In any protected natural resource area, a permit is not required for the repair and maintenance of an existing road culvert or for the replacement of an existing culvert, as long as the replacement culvert is:
A. [1993, c. 315, §2 (RP).]
B. Not more than 25% longer than the culvert being replaced; and [1991, c. 46, §3 (NEW).]
C. Not longer than 75 feet. [1991, c. 46, §3 (NEW).]
Ancillary culverting activities, including excavation and filling, are included in this exemption. A person repairing, replacing or maintaining an existing culvert under this subsection shall ensure that erosion control measures are taken to prevent sedimentation of the water and that the crossing does not block passage for fish in the water course or passage for other aquatic organisms in the water course if passage for fish is required under this subsection. Replacement culverts and techniques used in installing the culverts must achieve natural stream flow. This subsection applies only to water courses containing fish.
[ 2009, c. 460, §2 (AMD) .]
2-B. Floating docks. Replacement of a floating dock with another floating dock if the dimensions of the replacement dock do not exceed those of the dock being replaced and the configuration of the replacement dock is the same as the dock being replaced. In any action brought by the department against a person claiming an exemption under this subsection, the burden is on that person to demonstrate that the replacement dock satisfies the requirements of this subsection;
[ 1993, c. 617, §2 (NEW) .]
2-C. Transportation reconstruction or replacement project within a community public water system primary protection area. A transportation reconstruction or replacement project located within a community public water system primary protection area as long as a permit is not required due to the presence of any other type of protected natural resource;
[ 2007, c. 353, §12 (NEW) .]
3. Peat mining.
[ 1995, c. 700, §1 (RP) .]
4. Interstate pipelines. Alteration of freshwater wetlands associated with the construction, operation, maintenance or repair of an interstate pipeline, subject to article 6, where applicable;
[ 1987, c. 809, §2 (NEW) .]
5. Gold panning. Notwithstanding section 480-C, a permit shall not be required for panning gold, provided that stream banks are not disturbed and no unlicensed discharge is created;
[ 1987, c. 809, §2 (NEW) .]
6. Agricultural activities. Subject to other provisions of this article that govern other protected natural resources, altering a freshwater wetland for the purpose of normal farming activities such as clearing of vegetation for agricultural purposes if the land topography is not altered, plowing, seeding, cultivating, minor drainage and harvesting, construction or maintenance of farm or livestock ponds or irrigation ditches, maintenance of drainage ditches and construction or maintenance of farm roads;
[ 1995, c. 460, §5 (AMD) .]
7. Forestry.
[ 1989, c. 838, §5 (RP) .]
7-A. Forestry. Forest management activities, including associated road construction or maintenance, in or adjacent to an existing forested wetland or a harvested forested wetland or adjacent to a protected natural resource pursuant to section 480-C, subsection 1, paragraphs A and B, as long as:
A. [2009, c. 537, §3 (RP).]
B. The activity meets permit-by-rule standards in rules adopted pursuant to this article for any road crossing of a river, stream or brook or for any soil disturbance adjacent to a protected natural resource pursuant to section 480-C, subsection 1, paragraphs A and B and the commissioner is notified before the forest management activity commences; [2001, c. 618, §4 (AMD).]
C. The protected natural resource is not mapped as a significant wildlife habitat under section 480-I; and [2001, c. 618, §4 (AMD).]
D. Any road construction is used primarily for forest management activities that do not constitute a change in land use under rules adopted by the Department of Conservation, Bureau of Forestry concerning forest regeneration and clear-cutting and is not used primarily to access development , unless the road is removed and the site restored to its prior natural condition. Roads must be the minimum feasible width and total length consistent with forest management activities. This exemption does not apply to roads within a subdivision as defined in Title 30‐A, section 4401, subsection 4, for the organized portions of the State, or Title 12, section 682, subsection 2‐A, including divisions of land exempted by Title 12, section 682‐B, for portions of the State under the jurisdiction of the Maine Land Use Regulation Commission; [2009, c. 537, §4 (AMD).]
[ 2009, c. 537, §§3, 4 (AMD) .]
8. Hydropower projects. Hydropower projects are exempt from the provisions of this article to the extent provided in section 634. Alteration of a freshwater wetland associated with the operation of a hydropower project, as defined in section 632, is exempt from the provisions of this article, but is subject to chapter 5, subchapter I, article 1, subarticle 1-B, where applicable;
[ 1989, c. 306, §1 (AMD); 1989, c. 430, §7 (AMD) .]
9. Public works. A permit is not required for emergency repair or normal maintenance and repair of existing public works which affect any protected natural resource. An activity which is exempt under this subsection shall employ erosion control measures to prevent sedimentation of any surface water, shall not block fish passage in any water course and shall not result in any additional intrusion of the public works into the protected natural resource. This exemption does not apply to any activity on an outstanding river segment as listed in section 480-P;
[ 1989, c. 306, §2 (AMD); 1989, c. 430, §8 (AMD); 1989, c. 878, Pt. A, §111 (AMD) .]
9-A. Community public water systems. Community public water systems are exempt from the provisions of this article for activities within their community public water system primary protection areas as long as the activities are conducted in a manner that protects the quality and quantity of water available for the system;
[ 2007, c. 353, §13 (NEW) .]
10. Aquaculture. Aquaculture activities regulated by the Department of Marine Resources under Title 12, section 6072, 6072-A, 6072-B or 6072-C. Ancillary activities, including, but not limited to, building or altering docks or filling of wetlands, are not exempt from the provisions of this article;
[ 2007, c. 292, §26 (AMD) .]
11. Soil evaluation. Borings taken to evaluate soil conditions in or adjacent to a great pond, river, stream or brook, coastal wetland, freshwater wetland or sand dune are exempt from the provisions of this article provided that no area of wetland vegetation is destroyed or permanently removed;
[ 1993, c. 187, §2 (AMD); 1993, c. 215, §1 (AMD); 1993, c. 296, §4 (AMD) .]
12. Existing access ways. Normal maintenance and repair or reconstruction of existing access ways in freshwater or coastal wetlands to residential dwellings as long as:
A. The applicant shows evidence that the access way in disrepair is the existing route of access to the residential dwelling; [1991, c. 240, §3 (NEW).]
B. Erosion control measures are used; [1991, c. 240, §3 (NEW).]
C. Intrusion of the access way into the freshwater or coastal wetland is minimized and allows for proper drainage where necessary; [1991, c. 240, §3 (NEW).]
D. The access way, if in a coastal wetland, is traditionally dry at mean high tide; and [1991, c. 240, §3 (NEW).]
E. A notice of intent to maintain, repair or reconstruct the access way and the description of the work to be completed are submitted to the commissioner and to the municipal reviewing authority at least 20 days before the work is performed; and [1993, c. 187, §3 (AMD); 1993, c. 215, §2 (AMD); 1993, c. 296, §5 (AMD).]
[ 1993, c. 187, §3 (AMD); 1993, c. 215, §2 (AMD); 1993, c. 296, §5 (AMD) .]
13. Moorings. The placement of a mooring in any area regulated by this article.
[ 1993, c. 187, §4 (NEW) .]
14. Lawful harvesting of marine organisms or vegetation in coastal wetlands. A person lawfully engaged in the harvesting of marine organisms or vegetation under the provisions of Title 12, chapter 605 is not required to obtain a permit to engage in those activities in a coastal wetland or a coastal wetland containing a high or moderate value waterfowl or wading bird habitat or shorebird feeding or staging area. Within a coastal wetland or a coastal wetland containing a high or moderate value waterfowl or wading bird habitat or shorebird feeding or staging area, the removal of vegetation or displacement of soil associated with or authorized by those lawful activities is not a violation of this article; and
[ 2007, c. 290, §5 (AMD) .]
15. Subsurface wastewater disposal systems.
[ 1993, c. 721, Pt. F, §2 (RP); 1993, c. 721, Pt. H, §1 (AFF) .]
15-A. Subsurface wastewater disposal systems. Installation, removal or repair of a subsurface wastewater disposal system, as long as the system complies with all requirements of the subsurface wastewater disposal rules adopted by the Department of Health and Human Services under Title 22, section 42, subsection 3. This subsection takes effect on March 1, 1995.
[ 1993, c. 721, Pt. F, §3 (NEW); 1993, c. 721, Pt. H, §1 (AFF); 2003, c. 689, Pt. B, §6 (REV) .]
16. Alterations in back dunes of coastal sand dune systems.
[ 1993, c. 521, §1 (AMD); MRSA T. 38, §480-Q, sub-§16 (RP) .]
17. Minor alterations in freshwater wetlands. Activities that alter less than 4,300 square feet of freshwater wetlands, as long as:
A. The activity does not occur in, on or over another protected natural resource; [1995, c. 575, §1 (NEW).]
B. A 25-foot setback from other protected natural resources is maintained and erosion control measures are used; [1995, c. 575, §1 (NEW).]
C. The activity is not located in a shoreland zone regulated by a municipality pursuant to chapter 3, subchapter I, article 2-B or in the wetland or water body protected by the shoreland zone; [1995, c. 575, §1 (NEW).]
D. The activity does not occur in a wetland normally consisting of or containing at least 20,000 square feet of open water, aquatic vegetation or emergent marsh vegetation, except for artificial ponds or impoundments; [1995, c. 575, §1 (NEW).]
E. The activity does not take place in a wetland containing or consisting of peat land dominated by shrubs, sedges and sphagnum moss; [2005, c. 116, §3 (AMD).]
F. The entire activity constitutes a single, complete project; and [2005, c. 116, §3 (AMD).]
G. The activity does not occur in a significant wildlife habitat. [2005, c. 116, §4 (NEW).]
An activity does not qualify for exemption under this subsection if that activity is part of a larger project, including a multiphase development, that does not qualify as a whole project. Activities authorized or legally conducted prior to September 29, 1995 may not be considered in calculating the size of the alteration.
[ 2005, c. 116, §§3, 4 (AMD) .]
18. Service drops for telephone or electrical service. Vegetative clearing of a freshwater wetland for the installation of telephone or electrical service, if:
A. The line extension does not cross or run beneath a coastal wetland, river, stream or brook; [1995, c. 460, §12 (AFF); 1995, c. 460, §6 (NEW).]
B. The placement of wires or installation of utility poles is located entirely upon the premises of the customer requesting service, upon a roadway right-of-way or, in the case of telephone service, on existing utility poles; and [1995, c. 460, §12 (AFF); 1995, c. 460, §6 (NEW).]
C. The total length of the extension is less than 1,000 feet. [1995, c. 460, §12 (AFF); 1995, c. 460, §6 (NEW).]
[ 1995, c. 460, §12 (AFF); 1995, c. 460, §6 (NEW) .]
19. Displacement or bulldozing of sediment within a lobster pound. Displacement or bulldozing of sediment within a lobster pound, provided the sediment is not removed from the area inundated as a result of the impoundment.
[ RR 1995, c. 1, §31 (RNU) .]
20. Constructed ponds. Alteration of legally created constructed ponds that are not considered part of a great pond, coastal wetland, river, stream or brook, as long as the constructed pond is not expanded beyond its original size.
[ 1995, c. 575, §2 (NEW) .]
21. Removal of beaver dams. Removal of a beaver dam as authorized by a game warden, as long as:
A. Efforts are made to minimize erosion of soil and fill material from disturbed areas into a protected natural resource; [1999, c. 148, §1 (NEW).]
B. Efforts are made to minimize alteration of undisturbed portions of a wetland or water body; and [1999, c. 148, §1 (NEW).]
C. Wheeled or tracked equipment is operated in the water only for the purpose of crossing a water body to facilitate removal of the beaver dam. Where practicable, wheeled or tracked equipment may cross a water body only on a rock, gravel or ledge bottom. [1999, c. 148, §1 (NEW).]
This exemption includes the draining of a freshwater wetland resulting from removal of a beaver dam. It does not include removal of a beaver house.
[ 1999, c. 148, §1 (NEW) .]
22. Archaeological excavation. Archaeological excavation adjacent to a great pond, freshwater wetland, coastal wetland, sand dune system, river, stream or brook as long as the excavation is conducted by an archaeologist listed on the Maine Historic Preservation Commission level 1 or level 2 approved list and unreasonable erosion and sedimentation is prevented by means of adequate and timely temporary and permanent stabilization measures.
[ 2001, c. 207, §2 (NEW) .]
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, paragraph 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 1, article 2-B; or [2003, c. 637, §1 (AMD).]
B. If the cutting or clearing is not subject to the jurisdiction of a municipality pursuant to chapter 3, subchapter 1, 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 established 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" is defined as maintaining a rating score of 16 or more points in a 25-foot by 50-foot rectangular area as determined by the following rating system.
(i) A tree with a diameter at 4 1/2 feet above ground level of 2.0 to less than 4.0 inches has a point value of one.
(ii) A tree with a diameter at 4 1/2 feet above ground level of 4.0 inches to less than 8.0 inches has a point value of 2.
(iii) A tree with a diameter at 4 1/2 feet above ground level of 8.0 inches to less than 12.0 inches has a point value of 4.
(iv) A tree with a diameter at 4 1/2 feet above ground level of 12.0 or more inches has a point value of 8.
(b) In applying this point system:
(i) The 25-foot by 50-foot rectangular 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;
(iv) Any plot containing the required points may have vegetation removed down to the minimum points required or as otherwise allowed by this subsection; and
(v) Where conditions permit, no more than 50% of the points on any 25-foot by 50-foot rectangular area may consist of trees greater than 12 inches in diameter.
(c) For the purposes of this subparagraph, "other natural vegetation" is defined as retaining existing vegetation under 3 feet in height and other ground cover and retaining at least 5 saplings less than 2 inches in diameter at 4 1/2 feet above ground level for each 25-foot by 50-foot rectangular area. If 5 saplings do not exist, the landowner or lessee may not remove any woody stems less than 2 inches in diameter until 5 saplings have been recruited into the plot;
(3) In addition to the requirements of subparagraph (2), no more than 40% of the total volume of trees 4.5 inches or more in diameter, measured 4 1/2 feet above ground level, is selectively cut in any 10-year period;
(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. [2007, c. 292, §27 (AMD).]
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;
[ 2007, c. 292, §7 (AMD) .]
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 1, article 2-B;
[ 2005, c. 330, §15 (AMD) .]
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 1, article 2-B;
[ 2009, c. 75, §1 (AMD) .]
26. Overboard wastewater system. Installation, maintenance or removal of a licensed overboard discharge treatment system, including the outfall pipe, if:
A. Erosion control measures are taken to prevent sedimentation of the water; [2005, c. 330, §16 (NEW).]
B. Effects of construction activity on the protected natural resource are minimized; and [2005, c. 330, §16 (NEW).]
C. The activity is approved by the department as provided in the department's rules concerning overboard discharges adopted pursuant to section 414-A; [2009, c. 75, §2 (AMD).]
[ 2009, c. 75, §2 (AMD) .]
27. Fishways. Erection, maintenance, repair or alteration of a fishway in a dam or other artificial obstruction when required by the Commissioner of Inland Fisheries and Wildlife pursuant to Title 12, section 12760 or by the Commissioner of Marine Resources pursuant to Title 12, section 6121;
[ 2009, c. 75, §3 (NEW) .]
28. Release of water from dam after petition by owner for release from dam ownership or water level maintenance. Activity associated with the release of water from a dam pursuant to an order issued by the department pursuant to section 905; and
[ 2009, c. 75, §4 (NEW) .]
29. Dam safety order. Activity associated with the breach or removal of a dam pursuant to an order issued by the Commissioner of Defense, Veterans and Emergency Management under Title 37-B, chapter 24.
[ 2009, c. 75, §5 (NEW) .]
SECTION HISTORY
1987, c. 809, §2 (NEW). 1987, c. 890, §§1,2 (AMD). 1989, c. 306, §§1-3 (AMD). 1989, c. 430, §§6-9 (AMD). 1989, c. 838, §§5,6 (AMD). 1989, c. 878, §§A110-113 (AMD). 1991, c. 46, §3 (AMD). 1991, c. 240, §§1-3 (AMD). 1991, c. 622, §§H1-3 (AMD). 1991, c. 624, §§1,3 (AFF). RR 1993, c. 1, §§117,119 (COR). 1993, c. 187, §§2-4 (AMD). 1993, c. 215, §§1-3 (AMD). 1993, c. 296, §§4-6 (AMD). 1993, c. 296, §7 (AFF). 1993, c. 315, §2 (AMD). 1993, c. 410, §G7 (AMD). 1993, c. 521, §1 (AMD). 1993, c. 617, §§1,2 (AMD). 1993, c. 721, §§F2,3 (AMD). 1993, c. 721, §H1 (AFF). RR 1995, c. 1, §31 (COR). 1995, c. 27, §1 (AMD). 1995, c. 460, §§5,6 (AMD). 1995, c. 460, §12 (AFF). 1995, c. 493, §4 (AMD). 1995, c. 502, §E30 (AMD). 1995, c. 575, §§1,2 (AMD). 1995, c. 700, §1 (AMD). 1999, c. 148, §1 (AMD). 2001, c. 207, §2 (AMD). 2001, c. 431, §6 (AMD). 2001, c. 618, §§4,5 (AMD). 2003, c. 637, §1 (AMD). 2003, c. 689, §B6 (REV). 2005, c. 116, §§3,4 (AMD). 2005, c. 330, §§15,16 (AMD). 2007, c. 290, §5 (AMD). 2007, c. 292, §§26, 27 (AMD). 2007, c. 353, §§12, 13 (AMD). 2009, c. 75, §§1-5 (AMD). 2009, c. 460, §§1, 2 (AMD). 2009, c. 537, §§3, 4 (AMD). MRSA T. 38, §480Q/16 (AMD).