3r_L19053HN Order.pdf

STATE OF MAINE

DEPARTMENT OF ENVIRONMENTAL PROTECTION

17 STATE HOUSE STATION AUGUSTA, MAINE 04333-0017

DEPARTMENT ORDER

IN THE MATTER OF

U.S COAST GUARD ) NATURAL RESOURCES PROTECTION ACT

Jonesport, Washington County ) COASTAL WETLAND ALTERATION

MAINTENANCE DREDGE ) WATER QUALITY CERTIFICATION

L-19053-4E-H-N (approval) ) FINDINGS OF FACT AND ORDER

Pursuant to the provisions of 38 M.R.S. §§ 480-A–480-JJ, Section 401 of the CleanWater Act (33

U.S.C. § 1341), and Chapters 310 and 315 of Department rules, the Department of Environmental

Protection has considered the application of US COAST GUARD with the supportive data, agency review comments, and other related materials on file and FINDS THE FOLLOWING FACTS:

1. PROJECT DESCRIPTION:

A. History of Project: In Department Order L-19053-4E-B-N, dated January 29, 1996, the Department approved a harbor dredging project at the U.S. Coast Guard facility.

Multiple modifications of the project were approved by the Department in subsequent orders including Department Order L-19053-4E-G-N, dated October 26, 2011, in which, the Department approved the maintenance dredging of the U.S. Coast Guard facility’s all-tides/all-weather access boat basin with offshore disposal to the open-water site located east of Mark Island in Chandler Bay. The overall material removed from the boat basin has remained roughly consistent between 5,000 and 10,000 cubic yards every 8 to 10 years.

B. Summary: The applicant is proposing to conduct a maintenance dredge project of the boat basin and surrounding area, in the same footprint as the approved 2011 project, with the exception of the area of the boathouse. Although the original permit is less than ten years old, the dredge project does not qualify for a Permit-by-Rule Notification Form, pursuant to the Natural Resources Protection Act, because the disposal site will be different than approved in the 2011 permit. The dredging is proposed to take place in the waterway known as Moosabec Reach, with the proposed offshore disposal site located at the United

States Army Corps of Engineers Douglas Island Disposal Site. The proposed dredging activities will take place in and around the boat basin in an area of 73,000 square feet. The proposed dredge depth is to -12 feet Mean Lower Low Water (MLLW) with an allowable overdredge of 1 foot to -13 feet MLLW in the large boat slip and outshore of the concrete pier deck. The proposed depth north of the large boat slip, inside and around the enclosed rescue boat slips is -10 ft MLLW with an allowable overdredge of 1 foot to -11 feet MLLW.

The total project volume to be dredged is 2,211 cubic yards. The total project volume to overdredge is 5,076 cubic yards. The project is shown on a set of plans included with the application, the first of which is entitled “Proposed Plan,” prepared by Childs Engineering

Corporation and dated March 31, 2021. The project site is located on Route 187 in the

Town of Jonesport.

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C. Current Use of the Site: The site is currently used as a US Coast Guard Facility.

2. EXISTING SCENIC, AESTHETIC, RECREATIONAL OR NAVIGATIONAL USES:

The Natural Resources Protection Act (NRPA), in 38 M.R.S. § 480-D(1), requires the applicant to demonstrate that the proposed project will not unreasonably interfere with existing scenic, aesthetic, recreational and navigational uses.

In accordance with Chapter 315, Assessing and Mitigating Impacts to Scenic and Aesthetic

Uses (06-096 C.M.R. ch. 315, effective June 29, 2003), the applicant submitted a copy of the Department's Visual Evaluation Field Survey Checklist as Appendix A to the application along with a description of the property and the proposed project. The applicant also submitted several photographs of the proposed project site and surroundings.

The proposed project site is located in Moosabec Reach, which is a scenic resource visited by the general public, in part, for the use, observation, enjoyment and appreciation of its natural and cultural visual qualities. The proposed dredging will be completed underwater and no adverse scenic impacts are anticipated.

The Department determined that based on the nature of the proposed project and its location, there are no existing recreational or navigational uses of the resource that would be unreasonably impacted.

The Department finds that the proposed activity will not unreasonably interfere with existing scenic, aesthetic, recreational or navigational uses of the protected natural resource.

3. HABITAT CONSIDERATIONS:

The NRPA, in 38 M.R.S. § 480-D(3), requires the applicant to demonstrate that the proposed project will not unreasonably harm 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.

According to the Department’s Geographic Information System (GIS) database there are no mapped Essential or Significant Wildlife Habitats located at the site. DMR surveyed the area for eelgrass and found very little, most of which is 1000 ft or more to the west.

The Department of Marine Resources (DMR) reviewed the proposal and recommended that dredging and spoils disposal operations take place between November 8 and April 8 in any calendar year.

The project was reviewed by DEA. DEA commented that with the boathouse area removed from the scope of the proposed project, due to the sediment quality not meeting the suitability standard for open water disposal, the remaining project sediment is deemed acceptable for open water disposal at Douglas Island Disposal Site.

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The Department finds that 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 provided that the proposed dredge is completed between November 8 and April

8.

4. WATER QUALITY CONSIDERATIONS:

The NRPA, in 38 M.R.S. § 480-D(5), requires the applicant to demonstrate that the proposed project will not violate any state water quality law, including those governing the classification of the State’s waters.

The applicant will dredge the site and transport the material to the Douglas Island Disposal

Site. The Army Corps of Engineers (USACE) reviewed the applicant’s sediment sampling data and found that the dredge material is suitable for ocean disposal at the Douglas Island

Disposal Site. The proposed work was reviewed by the Division of Environmental

Assessment (DEA). DEA found the proposed work acceptable and did not have any concerns about sedimentation. Based on sampling and testing results, the Department does not anticipate that the proposed project will violate any state water quality law, including those governing the classification of the State’s waters.

The Department finds that the activity will not cause unreasonable erosion of soil or sediment nor unreasonably inhibit the natural transfer of soil from the terrestrial to the marine or freshwater environment.

5. WETLANDS AND WATERBODIES PROTECTION RULES:

The applicant is proposing to dredge approximately 73,000 square feet in the sub tidal area for boat basin and surrounding area.

The Wetlands and Waterbodies Protection Rules, 06-096 C.M.R. ch. 310 (last amended

November 11, 2018), interpret and elaborate on the Natural Resources Protection Act

(NRPA) criteria for obtaining a permit. The rules guide the Department in its determination of whether a project’s impacts would be unreasonable. A proposed project would generally be found to be unreasonable if it would cause a loss in wetland area, functions and values and there is a practicable alternative to the project that would be less damaging to the environment. Each application for a NRPA permit that involves a coastal wetland alteration must provide an analysis of alternatives in order to demonstrate that a practicable alternative does not exist.

A. Avoidance. The applicant must submit an analysis of whether there is a practicable alternative to the project that would be less damaging to the environment and this analysis is considered by the Department in its assessment of the reasonableness of any impacts.

Additionally, for activities proposed in, on, or over wetlands of special significance the activity must be among the types listed in Chapter 310, § 5(A) or a practicable alternative

L-19053-4E-H-N 4 of 10 less damaging to the environment is considered to exist and the impact is unreasonable.

The proposed dredge is necessary for the safety of the facility and is a water dependent use; both are provided for in Chapter 310, § 5(A)(1)(a), (c). The applicant submitted an alternatives analysis for the proposed project completed by Childs Engineering

Corporation and submitted with the application. The proposed site is a US Coast Guard facility which has previous been altered through dredging. The purpose of the project is to provide the depths needed for USCG vessels to maintain their mission goal of timely search and rescue missions to the area. The USCG must maintain access to and from the local waterway channels during all tide cycles to adequately perform their mission duty. The proposed dredging activities will take place in and around their boat basin.

B. Minimal Alteration. In support of an application and to address the analysis of the reasonableness of any impacts of a proposed project, an applicant must demonstrate that the amount of coastal wetland to be altered will be kept to the minimum amount necessary for meeting the overall purpose of the project. The applicant is proposing to dredge a previously dredged area to maintain all-tide/all-weather access. The applicant has designed the project to be as small as possible while meeting the project needs in order to minimize impacts to the resource.

C. Compensation. In accordance with Chapter 310, § 5(C)(6)(b), compensation may be required to achieve the goal of no net loss of coastal wetland functions and values. The applicant has demonstrated that the proposed dredge will not permanently alter the characteristics of the previous altered project area. Based on surveys by the applicant and comments from DMR, the Department finds that compensation is not required. Further, the proposed project will not have an adverse impact on marine resources or wildlife habitat as determined by DMR. For these reasons, the Department determined that compensation is not required.

The Department finds that the applicant has avoided and minimized wetland impacts to the greatest extent practicable, and that the proposed project represents the least environmentally damaging alternative that meets the overall purpose of the project.

6. DREDGE SPOILS TRANSPORTATION CONSIDERATIONS:

The proposed dredging activity will be done using either a clamshell or hydraulic bucket with a crane or excavator mounted on a barge. The dredge material will be dropped into a bottom-dumping scow which will be transported to dispose of the material at the offshore disposal site located at the United States Army Corps of Engineers Douglas Island Disposal

Site. All transportation and dumping at this site will follow the regulations set by USACE and only be during open dredge season as designated by permitting agencies.

DMR had a public hearing for public comments on February 1, 2021. Notice of comment opportunity was published on January 20, 2021 and closed on February 5, 2021. No comments were received at the hearing or written.

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As required by the NRPA, in 38 M.R.S. § 480-D(9), if the proposed activity involves dredging, dredge spoils disposal or transporting dredge spoils by water, the applicant must demonstrate that the transportation route minimizes adverse impacts on the fishing industry and that the disposal site is geologically suitable.

DMR provided an assessment of the proposed project and its impact on the fishing industry as stated in Finding 3.

To minimize this impact, the Department finds that the applicant must:

a. Equip the barge with a Vessel Monitoring System to track its transit activity along the approved transportation route of the dredge spoils.

b. Clearly mark or designate the dredging area and the transportation route.

c. Conduct outreach via written notice, 30 days in advance of the project start date. Notice must include:

i. The approved transportation route of the dredge spoils, including specific nautical bearings.

ii. A procedure that the applicant will use to respond to inquiries regarding the loss of fishing gear during the dredging operation, including a mechanism by which area fishermen may seek compensation for lost gear should the barge deviate from the specified haul route.

d. Notice must be:

i. Published in a local newspaper of general circulation along the transportation route, and

ii. Sent via email to the local Lobster Zone Councils A through coordination with DMR staff.

The department finds that the transportation route minimizes adverse impacts on the fishing industry and that the disposal site is geologically suitable, provided that the applicant provides public notice, as described above.

7. OTHER CONSIDERATIONS:

The Department finds, based on the design, proposed construction methods, and location, the proposed project will not inhibit the natural transfer of soil from the terrestrial to the marine environment, will not interfere with the natural flow of any surface or subsurface waters, and will not cause or increase flooding. The proposed project is not located in a coastal sand dune system, is not a crossing of an outstanding river segment.

BASED on the above findings of fact, and subject to the conditions listed below, the Department makes the following conclusions pursuant to 38 M.R.S. §§ 480-A–480-JJ and Section 401 of the

Clean Water Act (33 U.S.C. § 1341):

A. The proposed activity will not unreasonably interfere with existing scenic, aesthetic, recreational, or navigational uses.

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B. The proposed activity will not cause unreasonable erosion of soil or sediment.

C. The proposed activity will not unreasonably inhibit the natural transfer of soil from the terrestrial to the marine or freshwater environment.

D. The proposed 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, provided all dredging and spoil disposal occurs between November 8 and April

8 in any calendar year and that the provisions in Finding 6 are followed.

E. The proposed activity will not unreasonably interfere with the natural flow of any surface or subsurface waters.

F. The proposed activity will not violate any state water quality law including those governing the classifications of the State's waters.

G. The proposed activity will not unreasonably cause or increase the flooding of the alteration area or adjacent properties.

H. The proposed activity is not on or adjacent to a sand dune.

I. The proposed activity is not on an outstanding river segment as noted in 38 M.R.S.

§ 480-P.

THEREFORE, the Department APPROVES the above noted application of the US COAST

GUARD to conduct a dredging operation as described in Finding 1, SUBJECT TO THE

ATTACHED CONDITIONS, and all applicable standards and regulations:

1. Standard Conditions of Approval, a copy attached.

2. The applicant shall take all necessary measures to ensure that its activities or those of its agents do not result in measurable erosion of soil on the site during the construction of the project covered by this approval.

3. Severability. The invalidity or unenforceability of any provision, or part thereof, of this

License shall not affect the remainder of the provision or any other provisions. This License shall be construed and enforced in all respects as if such invalid or unenforceable provision or part thereof had been omitted.

4. The barge must be equipped with a Vessel Monitoring System to track its transit activity along the haul route from the proposed project location to the proposed Douglas Island

Disposal site in State waters.

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FILED

April 29, 2021

State of Maine

Board of Environmental Protection

5. Prior to the commencement of the dredge, the applicant shall comply with the provisions of 38 M.R.S.A. 480-D (9) and shall conduct outreach via written notice 30 days in advance of the project start date. Notice must include:

a. The approved transportation route of the dredge spoils, including specific nautical bearings.

b. A procedure that the applicant will use to respond to inquiries regarding the loss of fishing gear during the dredging operation, including a mechanism by which area fishermen may seek compensation for lost gear should the barge deviate from the specified haul route.

Notice must be:

a. Published in a local newspaper of general circulation along the transportation route, and

b. Sent via email to the local Lobster Zone Councils A through coordination with DMR staff.

6. All dredging and spoils disposal operations shall take place from November 8 and April 8.

THIS APPROVAL DOES NOT CONSTITUTE OR SUBSTITUTE FOR ANY OTHER

REQUIRED STATE, FEDERAL OR LOCAL APPROVALS NOR DOES IT VERIFY

COMPLIANCE WITH ANY APPLICABLE SHORELAND ZONING ORDINANCES.

DONE AND DATED IN AUGUSTA, MAINE, THIS 28TH DAY OF APRIL, 2021.

BY:

For: Melanie Loyzim, Commissioner

PLEASE NOTE THE ATTACHED SHEET FOR GUIDANCE ON APPEAL PROCEDURES.

SS/L19053HN/ATS#86958

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Natural Resources Protection Act (NRPA)

Standard Conditions

THE FOLLOWING STANDARD CONDITIONS SHALL APPLY TO ALL PERMITS GRANTED

UNDER THE NATURAL RESOURCES PROTECTION ACT, 38 M.R.S. §§ 480-A ET SEQ., UNLESS

OTHERWISE SPECIFICALLY STATED IN THE PERMIT.

A. Approval of Variations From Plans. The granting of this permit is dependent upon and limited to the proposals and plans contained in the application and supporting documents submitted and affirmed to by the applicant. Any variation from these plans, proposals, and supporting documents is subject to review and approval prior to implementation.

B. Compliance With All Applicable Laws. The applicant shall secure and comply with all applicable federal, state, and local licenses, permits, authorizations, conditions, agreements, and orders prior to or during construction and operation, as appropriate.

C. Erosion Control. The applicant shall take all necessary measures to ensure that his activities or those of his agents do not result in measurable erosion of soils on the site during the construction and operation of the project covered by this Approval.

D. Compliance With Conditions. Should the project be found, at any time, not to be in compliance with any of the Conditions of this Approval, or should the applicant construct or operate this development in any way other the specified in the Application or Supporting Documents, as modified by the Conditions of this Approval, then the terms of this Approval shall be considered to have been violated.

E. Time frame for approvals. If construction or operation of the activity is not begun within four years, this permit shall lapse and the applicant shall reapply to the Board for a new permit. The applicant may not begin construction or operation of the activity until a new permit is granted. Reapplications for permits may include information submitted in the initial application by reference. This approval, if construction is begun within the four-year time frame, is valid for seven years. If construction is not completed within the seven-year time frame, the applicant must reapply for, and receive, approval prior to continuing construction.

F. No Construction Equipment Below High Water. No construction equipment used in the undertaking of an approved activity is allowed below the mean high water line unless otherwise specified by this permit.

G. Permit Included In Contract Bids. A copy of this permit must be included in or attached to all contract bid specifications for the approved activity.

H. Permit Shown To Contractor. Work done by a contractor pursuant to this permit shall not begin before the contractor has been shown by the applicant a copy of this permit.

Revised September 2016

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STATE OF MAINE

17 STATE HOUSE STATION, AUGUSTA, MAINE 04333

Erosion Control for Homeowners

Before Construction

1. If you have hired a contractor, make sure you discuss your permit with them. Talk about what measures they plan to take to control erosion. Everybody involved should understand what the resource is, and where it is located.

Most people can identify the edge of a lake or river. However, the edges of wetlands are often not so obvious.

Your contractor may be the person actually pushing dirt around, but you are both responsible for complying with the permit.

2. Call around to find where erosion control materials are available. Chances are your contractor has these materials already on hand. You probably will need silt fence, hay bales, wooden stakes, grass seed (or conservation mix), and perhaps filter fabric. Places to check for these items include farm & feed supply stores, garden & lawn suppliers, and landscaping companies. It is not always easy to find hay or straw during late winter and early spring.

It also may be more expensive during those times of year. Plan ahead – buy a supply early and keep it under a tarp.

3. Before any soil is disturbed, make sure an erosion control barrier has been installed. The barrier can be either a silt fence, a row of staked hay bales, or both. Use the drawings below as a guide for correct installation and placement.

The barrier should be placed as close as possible to the soil-disturbance activity.

4. If a contractor is installing the erosion control barrier, double check it as a precaution. Erosion control barriers should be installed "on the contour", meaning at the same level or elevation across the land slope, whenever possible. This keeps stormwater from flowing to the lowest point along the barrier where it can build up and overflow or destroy the barrier.

During Construction

1. Use lots of hay or straw mulch on disturbed soil. The idea behind mulch is to prevent rain from striking the soil directly. It is the force of raindrops hitting the bare ground that makes the soil begin to move downslope with the runoff water, and cause erosion. More than 90% of erosion is prevented by keeping the soil covered.

2. Inspect your erosion control barriers frequently. This is especially important after a rainfall. If there is muddy water leaving the project site, then your erosion controls are not working as intended. You or your contractor then need to figure out what can be done to prevent more soil from getting past the barrier.

3. Keep your erosion control barrier up and maintained until you get a good and healthy growth of grass and the area is permanently stabilized.

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After Construction

1. After your project is finished, seed the area. Note that all ground covers are not equal. For example, a mix of creeping red fescue and Kentucky bluegrass is a good choice for lawns and other high-maintenance areas. But this same seed mix is a poor selection for stabilizing a road shoulder or a cut bank that you don't intend to mow. Your contractor may have experience with different seed mixes, or you might contact a seed supplier for advice.

2. Do not spread grass seed after September 15. There is the likelihood that germinating seedlings could be killed by a frost before they have a chance to become established. Instead, mulch the area with a thick layer of hay or straw.

In the spring, rake off the mulch and then seed the area. Don't forget to mulch again to hold in moisture and prevent the seed from washing away or being eaten by birds or other animals.

3. Keep your erosion control barrier up and maintained until you get a good and healthy growth of grass and the area is permanently stabilized.

Why Control Erosion?

To Protect Water Quality

When soil erodes into protected resources such as streams, rivers, wetlands, and lakes, it has many bad effects. Eroding soil particles carry phosphorus to the water. An excess of phosphorus can lead to explosions of algae growth in lakes and ponds called blooms. The water will look green and can have green slime in it. If you are near a lake or pond, this is not pleasant for swimming, and when the soil settles out on the bottom, it smothers fish eggs and small animals eaten by fish. There many other effects as well, which are all bad.

To Protect the Soil

It has taken thousands of years for our soil to develop. It usefulness is evident all around us, from sustaining forests and growing our garden vegetables, to even treating our septic wastewater! We cannot afford to waste this valuable resource.

To Save Money ($$)

Replacing topsoil or gravel washed off your property can be expensive. You end up paying twice because State and local governments wind up spending your tax dollars to dig out ditches and storm drains that have become choked with sediment from soil erosion.

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DEP INFORMATION SHEET

Appealing a Department Licensing Decision

Dated: November 2018 Contact: (207) 287-2452

SUMMARY

There are two methods available to an aggrieved person seeking to appeal a licensing decision made by the

Department of Environmental Protection’s (DEP) Commissioner: (1) an administrative process before the Board of Environmental Protection (Board); or (2) a judicial process before Maine’s Superior Court. An aggrieved person seeking review of a licensing decision over which the Board had original jurisdiction may seek judicial review in Maine’s Superior Court.

A judicial appeal of final action by the Commissioner or the Board regarding an application for an expedited wind energy development (35-A M.R.S. § 3451(4)) or a general permit for an offshore wind energy demonstration project (38 M.R.S. § 480-HH(1)) or a general permit for a tidal energy demonstration project (38

M.R.S. § 636-A) must be taken to the Supreme Judicial Court sitting as the Law Court.

This information sheet, in conjunction with a review of the statutory and regulatory provisions referred to herein, can help a person to understand his or her rights and obligations in filing an administrative or judicial appeal.

I. ADMINISTRATIVE APPEALS TO THE BOARD

LEGAL REFERENCES

The laws concerning the DEP’s Organization and Powers, 38 M.R.S. §§ 341-D(4) & 346; the Maine

Administrative Procedure Act, 5 M.R.S. § 11001; and the DEP’s Rules Concerning the Processing of

Applications and Other Administrative Matters (“Chapter 2”), 06-096 C.M.R. ch. 2.

DEADLINE TO SUBMIT AN APPEAL TO THE BOARD

The Board must receive a written appeal within 30 days of the date on which the Commissioner’s decision was filed with the Board. Appeals filed more than 30 calendar days after the date on which the

Commissioner’s decision was filed with the Board will be dismissed unless notice of the Commissioner’s license decision was required to be given to the person filing an appeal (appellant) and the notice was not given as required.

HOW TO SUBMIT AN APPEAL TO THE BOARD

Signed original appeal documents must be sent to: Chair, Board of Environmental Protection, 17 State

House Station, Augusta, ME 04333-0017. An appeal may be submitted by fax or e-mail if it contains a scanned original signature. It is recommended that a faxed or e-mailed appeal be followed by the submittal of mailed original paper documents. The complete appeal, including any attachments, must be received at

DEP’s offices in Augusta on or before 5:00 PM on the due date; materials received after 5:00 pm are not considered received until the following day. The risk of material not being received in a timely manner is on the sender, regardless of the method used. The appellant must also send a copy of the appeal documents to the Commissioner of the DEP; the applicant (if the appellant is not the applicant in the license proceeding at issue); and if a hearing was held on the application, any intervenor in that hearing process. All of the information listed in the next section of this information sheet must be submitted at the time the appeal is filed.

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INFORMATION APPEAL PAPERWORK MUST CONTAIN

Appeal materials must contain the following information at the time the appeal is submitted:

1. Aggrieved Status. The appeal must explain how the appellant has standing to maintain an appeal.

This requires an explanation of how the appellant may suffer a particularized injury as a result of the

Commissioner’s decision.

2. The findings, conclusions, or conditions objected to or believed to be in error. The appeal must identify the specific findings of fact, conclusions regarding compliance with the law, license conditions, or other aspects of the written license decision or of the license review process that the appellant objects to or believes to be in error.

3. The basis of the objections or challenge. For the objections identified in Item #2, the appeal must state why the appellant believes that the license decision is incorrect and should be modified or reversed. If possible, the appeal should cite specific evidence in the record or specific licensing requirements that the appellant believes were not properly considered or fully addressed.

4. The remedy sought. This can range from reversal of the Commissioner's decision on the license or permit to changes in specific permit conditions.

5. All the matters to be contested. The Board will limit its consideration to those matters specifically raised in the written notice of appeal.

6. Request for hearing. If the appellant wishes the Board to hold a public hearing on the appeal, a request for public hearing must be filed as part of the notice of appeal, and must include an offer of proof in accordance with Chapter 2. The Board will hear the arguments in favor of and in opposition to a hearing on the appeal and the presentations on the merits of an appeal at a regularly scheduled meeting. If the

Board decides to hold a public hearing on an appeal, that hearing will then be scheduled for a later date.

7. New or additional evidence to be offered. If an appellant wants to provide evidence not previously provided to DEP staff during the DEP’s review of the application, the request and the proposed evidence must be submitted with the appeal. The Board may allow new or additional evidence, referred to as supplemental evidence, to be considered in an appeal only under very limited circumstances. The proposed evidence must be relevant and material, and (a) the person seeking to add information to the record must show due diligence in bringing the evidence to the DEP’s attention at the earliest possible time in the licensing process; or (b) the evidence itself must be newly discovered and therefore unable to have been presented earlier in the process. Specific requirements for supplemental evidence are found in

Chapter 2 § 24.

OTHER CONSIDERATIONS IN APPEALING A DECISION TO THE BOARD

1. Be familiar with all relevant material in the DEP record. A license application file is public information, subject to any applicable statutory exceptions, and is made easily accessible by the DEP.

Upon request, the DEP will make application materials available during normal working hours, provide space to review the file, and provide an opportunity for photocopying materials. There is a charge for copies or copying services.

2. Be familiar with the regulations and laws under which the application was processed, and the procedural rules governing your appeal. DEP staff will provide this information on request and answer general questions regarding the appeal process.

3. The filing of an appeal does not operate as a stay to any decision. If a license has been granted and it has been appealed, the license normally remains in effect pending the processing of the appeal. Unless a stay of the decision is requested and granted, a license holder may proceed with a project pending the outcome of an appeal, but the license holder runs the risk of the decision being reversed or modified as a result of the appeal.

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WHAT TO EXPECT ONCE YOU FILE A TIMELY APPEAL WITH THE BOARD

The Board will formally acknowledge receipt of an appeal, and will provide the name of the DEP project manager assigned to the specific appeal. The notice of appeal, any materials accepted by the Board Chair as supplementary evidence, any materials submitted in response to the appeal, and relevant excerpts from the

DEP’s application review file will be sent to Board members with a recommended decision from DEP staff.

The appellant, the license holder if different from the appellant, and any interested persons are notified in advance of the date set for Board consideration of an appeal or request for public hearing. The appellant and the license holder will have an opportunity to address the Board at the Board meeting. With or without holding a public hearing, the Board may affirm, amend, or reverse a Commissioner decision or remand the matter to the Commissioner for further proceedings. The Board will notify the appellant, the license holder, and interested persons of its decision.

II. JUDICIAL APPEALS

Maine law generally allows aggrieved persons to appeal final Commissioner or Board licensing decisions to Maine’s Superior Court (see 38 M.R.S. § 346(1); 06-096 C.M.R. ch. 2; 5 M.R.S. § 11001; and M.R. Civ.

P. 80C). A party’s appeal must be filed with the Superior Court within 30 days of receipt of notice of the

Board’s or the Commissioner’s decision. For any other person, an appeal must be filed within 40 days of the date the decision was rendered. An appeal to court of a license decision regarding an expedited wind energy development, a general permit for an offshore wind energy demonstration project, or a general permit for a tidal energy demonstration project may only be taken directly to the Maine Supreme Judicial Court. See 38

M.R.S. § 346(4).

Maine’s Administrative Procedure Act, DEP statutes governing a particular matter, and the Maine Rules of

Civil Procedure must be consulted for the substantive and procedural details applicable to judicial appeals.

ADDITIONAL INFORMATION

If you have questions or need additional information on the appeal process, for administrative appeals contact the Board’s Executive Analyst at (207) 287-2452, or for judicial appeals contact the court clerk’s office in which your appeal will be filed.

Note: The DEP provides this INFORMATION SHEET for general guidance only; it is not intended for use as a legal reference. Maine law governs an appellant’s rights.