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Top 11 New State Environmental, Energy and Land Use Laws

1. An Act to Ensure Regulatory Fairness and Reform

Public Law 2011, Chapter 304 (Emergency, effective June 13, 2011)

This law reduces the regulatory burden on businesses by eliminating duplicative or unnecessary regulations and by streamlining the environmental permitting process.

It creates an environmental audit program that provides regulated businesses with an incentive to report environmental violations. Under the new program, fines and other penalties may be reduced or eliminated for environmental violations that are promptly reported and corrected.

It renames the existing “Business Assistance Referral and Facilitation Program” as the “Business Ombudsman Program,” and charges it with the responsibility to resolve business’ problems in dealing with State agencies. It also establishes a “Bureau of the Special Advocate.” The special advocate will report to the Secretary of State and is tasked with representing the interests of small businesses throughout the regulatory process. The special advocate will provide a conduit through which a small business owner adversely impacted by an enforcement action can voice his or her concerns.

Other significant changes in the new law include: reduction in the size of the Board of Environmental Protection from 10 to 7 members; elimination of the Board’s ability to reconsider its decisions; reallocate rule-making authority, with the Board having authority over major substantive rules and the Commissioner over other rules; and shifting of many of the responsibilities of the Board to the Commissioner of Environmental Protection. Under the new law, the vast majority of permits and licenses will be granted by the Commissioner instead of the Board. This is significant for two reasons. First, it will likely streamline permitting and licensing decisions considerably. Second, it will reduce the danger of the Board denying a permit after substantial resources have been expended by an applicant in working with DEP to obtain it. Other features of this new law include provisions:

Authorizing agencies to conduct a cost-benefit analysis of all proposed rules.
Requiring agencies to cite up to three primary sources of information relied upon when proposing or adopting rules.

Clarifying that rules are not judicially enforceable unless adopted in a manner consistent with the Administrative Procedures Act.
Authorizing a legislative committee of jurisdiction to direct an agency to undertake retrospective review of its own rules for relevance, clarity and reasonableness and to report back to the committee on its findings.

2. An Act to Improve Maine’s Energy Security

Public Law 2011, Chapter 400

This new law sets goals to reduce oil use in all sectors of the Maine economy. Chapter 400 requires the Governor’s Office of Energy Independence and Security to develop a plan to reduce oil use by at least 30% of 2007 levels by 2030 and by at least 50% of 2007 levels by 2050 and to report regularly on the progress made toward these goals.

3. An Act to Provide Certainty to Businesses and Development

Public Law 2011, Chapter 63

This new law limits the ability of a municipality to nullify or amend a building permit, zoning permit, subdivision site plan, conditional use, special exception, or other land use permit or approval by enacting, amending or repealing an ordinance. Under the new law, once 45 days have passed since a municipal land use permit has received final approval, the permit cannot be nullified or amended retroactively.

This new law limits a city or town’s authority to block real estate development projects. In the past, Maine cities and towns have been able to enact, amend or repeal an ordinance and apply it retroactively to render an approved land use permit invalid. Chapter 63 ensures that this will no longer be the case. The obvious impact of the law, as its title suggests, will be to provide greater certainty to developers that have secured final approval of a land use permit. However, the law makes it clear that it only applies to municipal land use permits that have received “final approval.” It provides no protection to developers or individuals that have spent considerable time in pursuit of permit approval, but have yet to secure final approval (although the State’s savings statute, 1 M.R.S.A. § 302, may provide some protection if an application has become a “pending proceeding”). Furthermore, the law does not affect any provision in a municipal ordinance that provides for the expiration or lapse of a permit approval after a certain period of time passes.

4. Resolve, Directing the Department of Environmental Protection to Amend its Rules Governing the Length of Time Certain Permits are Valid

Resolves 2011, Chapter 46

Chapter 46 requires the Department of Environmental Protection to amend its rules to extend the amount of time permits issued under the Natural Resources Protection Act and under the site location of development and storm water laws remain valid. Under DEP’s current rules, permits issued according to these laws lapse if the project is not commenced within two years and completed within five years. Under this Resolve, projects must be commenced within four years and completed within seven years.

This law encourages development projects by giving developers greater flexibility in how to move forward once all required permits have been secured. Permit requirements can be stringent, and obtaining final approval is often both costly and time consuming. This Resolve will provide developers who have postponed projects (due to lack of financing or other reasons) with more time, avoiding the risk of having to start the permitting process all over again if the project is not commenced in time.

5. An Act to Create a 6-Year Statute of Limitations for Environmental Violations

Public Law 2011, Chapter 250.

This new law establishes a six-year statute of limitations during which the State may bring an enforcement action for civil penalties against a potential violator, starting from the latest of one of several events: discovery of the violation, identification of the violator, or the last day of the violation. An “enforcement action” is defined as any of the following: the proposing of a consent agreement, scheduling of an enforcement hearing, or filing of a complaint in either district or superior court.

6. An Act to Amend the Laws Administered by the Department of Environmental Protection

Public Law 2011, Chapter 206. (Emergency, effective June 3, 2011)

This new law amends many of the State’s environmental statutes, including those governing water body classifications, liquid natural gas, oil discharges, and oil storage facilities.

Fiduciaries and lenders now are exempt from liability for discharges occurring during investigations undertaken in accordance with voluntary response action plans (VRAPs).

Liquid natural gas no longer is included in the definition of “oil” and so is no longer subject to the requirements with regard to underground oil storage tanks and oil discharge cleanup.

Further, the new law introduces a limitation on liability for cleanup expenses for the State and municipalities which acquire oil storage tanks as a result of the previous owner’s tax delinquency or abandonment; this is similar to the existing limited liability provisions for automatic foreclosure on uncontrolled hazardous substances sites.

Oil discharges from above-ground storage tanks with a capacity of 660 gallons or less (aggregate capacity of 1,320 gallons or less), used exclusively to store home heating oil, are eligible for Ground Water Oil Cleanup Fund coverage.

The 30-day minimum requirement for notice to the Commissioner and to the local fire department prior to underground oil storage tank removal is repealed to provide greater flexibility in giving notice.

In addition, this new law provides that in order to replace a grandfathered underground oil storage facility located in a wellhead protection zone, the facility owner must notify the Commissioner and local code enforcement officer within 30 days of removal of intent to replace the facility and must commence construction of the new facility within two years of removal of the existing facility. (This codifies DEP “policy” that the Maine Supreme Court determined earlier this year was unenforceable.)

The passage of this new law was expedited to allow for the timely dredging of a portion of the Kennebec River so that a newly completed naval vessel could proceed downriver from Bath to the sea.

7. An Act to Amend the Informed Growth Act

Public Law 2011, Chapter 89.

This law allows municipalities to “opt into” the Informed Growth Act (IGA). The IGA previously required municipalities to review applications for large-scale, “big box” retail development for several criteria, and required applicants to pay a $40,000 fee to fund a study to address the anticipated economic impact of such development on the local community. However, under this new law, municipalities now may voluntarily enact an ordinance to adopt the IGA by reference. Also, municipalities that adopt the IGA now will be able to determine the amount of the fee required to conduct impact studies, to select the impact study preparer and to receive the funds directly from the developer/retailer.

The new law will have important implications for municipal governments, local businesses, developers and national chain stores. Municipalities now will need to make their own informed decisions as to whether to adopt the IGA, and if so, with only appropriate modifications. Small businesses across the State will need to stay fully apprised of the applicability of the IGA in their municipality, and be prepared to bring their concerns to the attention of town and city officials. That municipalities are no longer mandated to apply the IGA may lessen permitting costs for larger retailers and developers of “big box” stores.

8. An Act to Amend the Laws Governing Significant Wildlife Habitat

Public Law 2011, Chapter 362.

This new law primarily affects significant vernal pools — the landlocked and often seasonal bodies of water typically devoid of fish that serve as nurseries for prenatal amphibian life and other species. The law does not lessen the mandated size of required buffer zones surrounding the pools. It does, however, amend the Natural Resources Protection Act (NRPA) to provide relief to landowners and developers in certain circumstances. For instance, a landowner is not subject to regulation if the buffer area on the landowner’s property is the result of a significant vernal pool habitat depression on property that landowner does not own or control. Where a vernal pool depression is bisected by a property line and the landowner seeking to cause an impact on a buffer has no permission to enter abutting property, only the portion of the depression on that landowner’s property will be considered in determining whether the vernal pool is significant. Artificial vernal pools will only be subject to regulation if part of a wetlands compensation project. The new law also makes clearer those instances in which State authorities may exempt vernal pools from regulation based on their dry-out dates.

The changes this new law brings are important for many members of the regulated community. For property owners and developers, the greater certainty of the rules regarding vernal pools and the greater threshold for a vernal pool to garner significant status may allow for permitting of development of previously regulated areas.

9. An Act to Foster Economic Development by Improving Administration of the Laws Governing Site Location of Development and Storm Water Management

Public Law 2011, Chapter 359.

This new law amends certain State laws administered by DEP.

It amends the Site Location of Development Law (“Site Law”) standard of review applicable to significant vernal pool habitat. Under the old Site Law, when making what is sometimes referred to as a “No Adverse Effect” finding, DEP arguably could impose any restrictions it thought necessary to protect and preserve significant vernal pool habitat, including increased setbacks and buffer strips. Under the amended law, DEP only can impose conditions on Site Law projects that include significant vernal pool habitat if the conditions are identical to the standards found under the Natural Resources Protection Act (“NRPA”) rules. This change eliminates DEP’s discretion to formulate vernal pool protections on an application-by-application basis, limits setbacks to 250 feet, and may provide a bit more procedural certainty for properties undergoing Site Law review that include vernal pool habitat.

This new law also makes certain Site Law and stormwater rules adopted after January 1, 2010 “major substantive rules” that require review by the committee of jurisdiction and adoption by the Legislature before becoming effective. The new law will require legislative review and approval of virtually all new or amended stormwater rules and certain Site Law rules. These changes increase the Legislature’s authority over DEP rulemaking and may limit DEP’s ability to enact politically unpopular stormwater and Site Law rules.

Finally, the law requires DEP to amend NRPA permitting rules for activities in high or moderate value waterfowl and wading bird habitat. Under the old rules, construction in these areas required “individual permit” review under NRPA, but under the required rule change, construction in these areas will now be subject only to a “permit-by-rule.” The permit-by-rule process is significantly less onerous than individual permit review. Individual permit review requires notice to the public, a public comment period and approval from DEP, often with additional conditions, or DEP may deny the permit altogether or refer it for review by the Board of Environmental Protection. A permit-by-rule, however, requires only that a notice form be filed with DEP and, in most cases, work can begin after a waiting period of just 14 days.

10. An Act to Amend the Laws Governing the Enforcement of Statewide Uniform Building Codes.
11. An Act to Provide Options to Municipalities Concerning the Maine Uniform Building and Energy Code.

Public Law 2011, Chapter 365 (Emergency, June 16, 2011)
Public Law 2011, Chapter 408.

These laws amend the statewide uniform building code law.

In 2008, the Maine Legislature mandated that beginning on December 1, 2010, any municipality with more than 2,000 residents was required to enforce the Maine Uniform Building and Energy Code (the “Uniform Code”). With the passage of LD 1416, only municipalities with more than 4,000 residents will be required to adopt the Uniform Code. Municipalities that had adopted any building code by August 1, 2008 must enforce the Uniform Code now; those that had not must begin to enforce the Uniform Code July 1, 2012. Municipalities with 4,000 or fewer residents need not have any building or energy code, but if they choose to adopt one, it must be the Uniform Code. In addition, LD 1253 specifically excuses municipalities with 2,000 or fewer residents from the Uniform Code requirement to issue certificates of occupancy to show compliance with the Uniform Code.

Those opposed to the Uniform Code argue that exempting small municipalities from the Code requirements will decrease costs for property owners and builders and will help to alleviate the burden placed on small-town code enforcement officers. Supporters of the Uniform Code counter that it will help make Maine homes and businesses more energy efficient and provide greater certainty for developers and builders, who can expect the same code provisions to apply regardless of where their project is located.

* The above is a summary of the 11 most important Maine environmental, energy and land use laws enacted in 2011. The summaries are not legal analyses and are not intended as legal advice. If you would like to know how these new laws may affect you or your business, corporation, non-profit organization or governmental entity, please contact Jim Katsiaficas for legal advice.