The Risks and Regulations Associated with Waterfront Development in Maine

By  Gordon Smith, Verrill

Waterfront development in Maine is on the rise. While waterfront development has a big investment upside, it can pose additional regulatory challenges and risks. Whether you are building on coastal or inland waters, shorefront property is subject to an array of federal, state, and local environmental and land-use controls. Here is a look at the regulatory requirements that could be triggered by shorefront development activities, including:

• New construction, replacement or enlargement of commercial buildings, houses, and other structures
• Construction of docks, piers, revetments, and seawalls
• Road building and stream crossings

Regulatory Requirements:

State-Mandated Municipal Shoreland Zoning. Any land in a municipality that is within 250 feet of the ocean, a pond, river, or large wetland, or is within 75 feet of a stream, is subject to shoreland zoning permitting and regulation. These rules are state-mandated but are administered by municipalities. Permits are issued by a town’s code enforcement officer or by its planning board, depending on the intensity of the activity. Municipalities can also enact independent and more stringent shoreland requirements beyond those imposed by the state. Within the shoreland zone:

• All commercial structures and uses require planning board approval (and are prohibited outright in certain shoreland districts)
• Locating a commercial enterprise on land that is currently used for any other purpose requires planning board approval, even when there is no alteration of structures
• Maintenance and clearing of trees and other vegetation is subject to a variety of restrictions, including a 25% lot area cap on cleared openings for any purpose

Maine Department of Environmental Protection (DEP) Permitting. Any activity that takes place “in, on, over” or within 75 feet of a coastal wetland (any land touched by saltwater, including coastal sand dunes), great pond (10 acres or larger), river, stream, and some freshwater wetlands requires a Natural Resources Protection Act (NRPA) permit from the DEP. Almost any alteration in these areas requires NRPA approval, including any displacement of soil, sand, vegetation, any placement of fill, and any construction, repair or alteration of a permanent structure. To obtain a NRPA permit, an applicant must show, among other things, that:

• There is no practicable alternative to the proposed work
• The project will not result in an unreasonable impact
• Compensation will be provided for loss of resource values

For certain categories of activities that trigger NRPA but are likely to result in de minimus impacts, the DEP applies a presumption that the work complies with NRPA permitting standards. For such activities a streamlined permit-by-rule process is available.

Federal Permitting. There are two types of activity in coastal and shoreland areas that could require a permit from the U.S. Army Corps of Engineers. Any structure placed either permanently or temporarily in “navigable waters” requires a permit under section 10 of the U.S. Rivers and Harbors Act (typically called a “Section 10 permit”). A navigable water is mostly what it sounds like (it’s big enough to fit a boat), and is defined by regulation as “waters that are subject to the ebb and flow of the tide, and those inland waters that are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce while the waterway is in its ordinary condition at the time of statehood.” For non-tidal waters, determining whether that general definition applies to a particular waterbody requires reference to additional regulations and case law. Examples of structures that could trigger section 10 include piers, docks, bridge abutments, transmission lines, retaining walls, and revetments located on intertidal or submerged land.

In addition, any deposit of material (usually placement of fill) in “waters of the United States” requires a permit under Section 404 of the U.S. Clean Water Act (typically called a “404 permit”). The exact definition of “waters of the United States” has been subject to decades of rulemaking and litigation, but it is quite broad and as a practical matter it includes almost all wetlands in the state.

FEMA Floodplain Permitting and Insurance. Many municipalities in Maine have adopted floodplain management ordinances in order for property owners to be eligible for subsidized flood insurance through the Federal Emergency Management Agency (FEMA). (Whether the federal government should be subsidizing construction in flood-prone areas is another question.) If your development is in such a municipality, any new work that takes place in a mapped floodplain requires a permit. FEMA is close to completing a lengthy process of updating its floodplain maps in Maine. If you are contemplating obtaining flood insurance (a matter of concern as sea level rises and storm cycles intensify), there may be an opportunity to get grandfathered into lower rates associated with previous mapping.

Prior to pursuing any coastal or shoreland development, work with an attorney to first identify what regulations you might be subject to and how best to mitigate risk in the process.