Mainers looking to build driveways, expand parking lots, or pursue commercial projects may have to pay higher fees if their construction is in a wetland.
Until now, Mainers have only had to pay fees for projects spanning more than 15,000 square feet in wetland areas. But the U.S. Army Corps of Engineers wants smaller construction projects disrupting more than 5,000 square feet of wetland areas in Maine to require these fees.
People can currently provide comments to the corps, which become part of its evaluation process before a decision is finalized. The corps will issue a new public notice after the 30-day public comment period, announcing when any changes will take effect.
Maine’s Natural Resources Protection Act prohibits development from “unreasonably” harming freshwater wetlands. Developers are supposed to avoid building in wetlands or minimize their construction there. But when the harm cannot be avoided, they have to compensate for the loss of the wetlands by funding preservation and restoration efforts in other areas of the state through mitigation fees.
At least one environmental consultant is worried that this change would create an unfair burden on Mainers constructing smaller projects who may not be able to afford the fees. A 5,000 square-foot threshold is equivalent to a 250-foot long driveway.
“This is huge for the people of Maine particularly the mom and pop sized projects,” said David Moyse, the president of Moyse Environmental Services in Bangor. “It is grossly unfair to Mainers as Maine has more wetland acreage than many of the other New England states have total land area.”
Moyse Environmental Services recently helped a client with the permitting process for a driveway across land with forested wetlands, some of which the client was able to avoid, Moyse said. The area permitted for development was 5,600 square feet, less than the forthcoming 15,000 square-foot limit, so the client didn’t need to pay mitigation fees. But under the new requirements, the client would have had to pay fees of approximately $24,000, based on the consultancy’s calculations, Moyse said.
The compensation fees are determined by a formula that takes into consideration different restoration costs per county. Penobscot County’s costs are $4.22 per square foot, for instance.
“The new change to the wetland threshold will affect everyone trying to do a project of any size where they may need to unavoidably fill some wetlands to get the job done,” Moyse said.
The corps is making the change because it is concerned about the permanent loss of wetlands in Maine. The state lost 4.8 million-square-feet of wetlands without compensatory mitigation fees over the past five years, according to the corps. It also wants Maine to be consistent with a national threshold of development in wetlands.
In Maine, 25 percent of the state’s land area consists of wetlands, which is four times the wetland area of the rest of the five New England states combined, according to the Maine Department of Environmental Protection. The state’s wetlands are unparalleled in the northeastern United States and are known for their biodiversity.
Wetlands are areas where the soil contains water at or near the surface of the soil throughout most parts of the year, including the growing season, according to the U.S. Environmental Protection Agency. More than 5 million acres of Maine wetlands are freshwater wetlands, while 157,500 acres are tidal or coastal wetlands.
Wetlands support plants, aquatic species and land species — such as wet meadows, wildflowers and dogwood — and provide key habitats for animals such as wood ducks, moose, beavers, deer and river otters.
Wetlands vary in size, and sometimes altering or damaging smaller wetland areas can result in significant changes to an existing environment, according to Noah Charney, an assistant professor in the department of wildlife, fisheries, and conservation biology at the University of Maine.
“Wetland loss is an important issue, and we’ve seen a 50 percent loss of wetlands across the world,” Charney said. “Many species depend on them from wildlife to plants.”
While protecting these habitats is important for the environment, some worry that the new threshold could affect Mainers building on their land.
“Maine has some of the largest wetland areas and this new regulation is just not equitable,” said Moyse, who has worked in environmental consulting for 36 years. “The reason why there has been more wetland loss in the last five years is because of an influx of development of larger projects, such as solar projects.”
The state made a similar assessment, saying in 2021 guidance that Maine had seen “a considerable increase in wetland alteration” due to an increase in solar development.
Moyse is both concerned for his clients and his business, as he also owns real estate development company Moyse Properties LLC with his wife. High wetland compensation fees could be a “project killer” for developers at a time when there’s a housing shortage, he said.
The new threshold could have the opposite of its intended effect and result in people taking their chances building smaller projects without the required permits to avoid paying hefty fees, he said.
When development alters or damages wetlands, compensatory fees for mitigation are not paid to the corps. Rather applicants pay the fees to the Maine Natural Resource Conservation Program, which is a funding source for preservation and restoration projects in Maine.
Developers must get separate permits from both the corps and the Maine Department of Environmental Protection when they pursue development in wetland areas, said David Madore, a department spokesperson.
If the federal change takes effect, the state and federal regulations will no longer be consistent. Before the department of environmental protection decides whether to change its threshold, “further thought and deliberation are required,” Madore said.