When any wetlands are to be altered by a project, a Tier 1, 2, or 3 Wetlands Alteration Permit is required by the State of Maine.

The rules state;

4. Wetlands of Special Significance. All coastal wetlands and great ponds are considered wetlands of special significance. In addition, certain freshwater wetlands are considered wetlands of special significance.

(4) Location near GPA great pond. The freshwater wetland area is located within 250 feet of the normal high water line, and within the same watershed, of any lake or pond classified as GPA under 38 M.R.S.A. § 465-A.

B. Permit Process. Alterations of wetlands of special significance usually require an individual permit. However, some alterations of freshwater wetlands of special significance may be eligible for Tier 1 or 2 review if the department determines, at the applicant's request, that the activity will not negatively affect the freshwater wetlands or other protected natural resources present. In making this determination, the department considers such factors as the size of the alteration, functions of the impacted area, existing development or character of the area in and around the alteration site, elevation differences and hydrological connection to surface water or other protected natural resources, among other things.

This is copied from and the complete text is available here:

http://www.maine.gov/sos/cec/rules/06/096/096c310.doc

through the State's web site

http://www.maine.gov/dep/blwq/docstand/nrpapage.htm#stat.

The Tier 1 permit is for the smallest of these wetland alterations, and the wetlands affected must fall below the criteria for the higher tiered permits, criteria which usually is a matter of size and "significance" of the wetlands. The purpose of the Tier 1 permit is to insure that applicants minimize the impact on the wetlands alteration as much as possible, and that any alternative citing to meet that minimization goal has been considered in an effort to do this. If the permit is approved by DEP the applicant must abide by the restrictions of their activities imposed by and limited to the contents of and requirements outlined in the permit. At least that is what is supposed to happen.

Despite the phrases above which state that ALL wetlands wetlands are of "special significance" I have been told time and time again, that the wetlands impacted by recent development permitted at Popham are of little significance in the eyes of the DEP. the process by which these permits have come about has been after the fact in both cases, and have not received an adequate evaluation because of that, in my opinion. They are in fact vernal pools, are part of the watershed, are connected when water levels of the nearby lake rise connected to a great pond, Silver Lake, which is stocked with fish by the Inland Fisheries and Wildlife, and are the source of our drinking water. How then does this stuff get permitted as insignificant?

The DEP determined in May of 2004 that the wetlands in and around the Chester site at Popham were in fact adjacent to and connected to Silver Lake, a great pond. The letter from the DEP to the town is contained here -PDF file fairly large. This determination was directly contradicted the findings of the Phippsburg Board Of Appeals (see BOA decision here). In the time leading up to this assessment by the State's leading expert in this, the DEP refused to consider any information which my family and neighbors provided as relevant to the permitting process before we had gotten to this point. However, the only reason they were requiring a Tier 1 Wetland Alteration permit at all was because I pointed out to staff who did not recognize the need for it, that the project on the property directly abutting this site permitted within a year and a half of this one, had already required a Tier 1 permit because of the presence of wetlands in addition to the sand dunes present on that site and that the sand dune permit already issued by them under the Permit By Rule process for this second, abutting site, did in fact show also the presence of wetlands. This made it a situation in which there were multiple protected resources present, and this requires under State law, a Tier 1 permit.

I do not know what conversations with DEP staff may have taken place prior to the submission of the Chester Sand Dune Permit By Rule Notification, but I believe that the PBR does indicate that some discussion took place , between staff and applicant and that the resulting submission of the PBR was based on those conversations. The PBR which was then submitted, or the information supplied at the time of those discussions did not lead the DEP staff to require or suggest the need for a Tier 1 Wetlands Alteration Permit. Because the DEP does not take the time to make careful considerations of the resources present for projects like these, and has lost lost the ability to accurately find information previously available either through institutional loss of memory or through staff lack of response to citizen concerns where known issues have been previously been brought to their attention, lots of 'Mistakes" (the words of a staffer in Portland) have been made with the issuing of these permits. The victim of these mostakes or human errors on the part of the DEP is the environment itself. It gets no "protection" from the Department of Environmental Protection if that agenct itself doesn't know what it is doing.

Only when DEP staff saw that a Tier 1 permit had been required for the first abutting site, did he admit that the second project seemed to also need a Tier 1 permit. This coming after having walked on the second site, examining and discussing wetlands with a sand dune permit in hand, a permit that showed wetlands overlapping the other protected resource, the sand dunes. months before this time, the town had issued its building permit and would later in appeal hearings about that permit erroneously cite letters from this same staff member who had, previous to this inspection, written that there were no wetlands adjacent to Silver Lake affected by the proposed alterations to this site. The Phippsburg Board of Appeals cited the wording of this staff member as part of the reason they would stand by an evaluation which allowed the site to remain outside of the town shore land zoning ordinance's 250 no construction zone.

Again despite repeated inquiries about the second of these projects, I still have not received an answer from DEP about another possible violation of the NRPA, even though this violation has directly caused increased flooding to our land during the spring rise in water levels of Silver Lake in 2005 lasting from late March to mid-July. There have been no sedimentation control and erosion controls were completely under water. The reason there have been no such controls has been that to admit that compliance with the required provisions of permits issued by DEP was inadequate given the circumstances and conditions present would be to admit that the permitting for these projects was not proper. Fill was allowed in an area that annually floods but was not given any of the consideration demanded by the law (the standards for such activities were not met by the applicants). Admitting that the permitting was inadequate in its facts and scope of resources present would admit that conditions as presented by us, abutters to the permitted property was accurate, but had been ignored in the permitting process, favoring the information supplied by the applicant. The project's permits did not take into consideration any of the conditions which would have required such controls. To admit that the permits were inadequate in their scope would be to admit that the process was inadequate. Neither the local nor the State authorities are willing to admit this, and so they are standing by their flawed evaluations. It can be speculated that the timing of the State's inspection of the second area by its shore land zoning and wetlands experts was such that by doing the inspections as they did and with no intention of making the local authorities comply with their own strict shoreland zoning ordinances, that the State allowed the local authorities to stand by flawed permitting with out the threat of State interference or intervention where the State knew that they were in error in the scope and extent of their determinations of protected resources. By then deferring to local authority in those determinations, the State freed itself of responsibility. The State effectively allowed a project which does not stand the test of any of its own required permitting considerations to go through.

"Special" conditions listed in the Chester permit were never implemented. The applicant was required to install a culvert in the driveway which divides two areas of wetland. DEP has not told me why or whether the permitee is in fact in violation of the permit. The very existence of the special condition was denied by direct verbal and written questioning of DEP staff who oversaw the issuance of the permit. Staff was aware of my concerns about the conditions outlined in the permit not have been complied with for a period of more than a month when construction was going on. Construction has since been put under a stay while the local permit is challenged in the courts. Regardless of court actions on local issues, the DEP has done nothing to enforce compliance with their permits. The driveway was partially under water and was the only thing which, since March to the time the wetlands dried up in early JULY, has prevented the building site from being an island in the wetlands. I questioned enforcement staff members about this back in February, anticipating the annual spring rise in the lake levels which causes the area to be covered with water. (This is not a result of our unusally wet spring. The same area flooded in the spring of 2004-see pictures from 2004 here-, when the winter months of January, February, and March were some of the driest on record.It also was inundated in 2003. See pictures 2003 pictures here). I received no answer to my question. Once the water rose to engulf the areas surrounding the construction site which were dammed off by the driveway, the DEP said it would be more damaging to force compliance until the waters recede ( When I wrote this in May, I speculated that we may see another year in which the flooding lasts into June- that has now happened. The water in this area was present until mid July see pictures here. As a child we used to build rafts in these waters. Because we lived in other parts of the country we only came to Maine when we got out of school in mid June at the earliest).

Neither queries in anticipation of spring rises in water levels nor inquiries after the fact have brought any action from the DEP. So I have to ask what the purpose of those permits is? To see that permit, (a large pdf) click here (soon).

Closed DEP Permitting Process

In addition to a seeming lack of responsibility in the oversight of these "permits", what is even more disturbing is that the DEP does not seem to want to allow comment from any other parties who might be affected by their permitting. While my family made available to DEP video tape and other images of the area in an attempt to demonstrate the scope of flooding, we were often told that the delineations done in September of the year, when these areas were dry (its expected that a wetland is dry some if not most of the year) and again before snow melt and spring rains came, were the only factors and information which the DEP needed to make it determinations, and that our evidence was not relevant. At times staff insisted that they would have to see first hand what conditions existed, i.e. if water flowed from the lake into these areas by evidence of flow. Even when that evidence was presented to them (click here), they denied its relevance from any regulatory viewpoint. The end result of this was that the only information which was accepted as relevant by the DEP in this permitting, was that which was supplied by the applicant. When questions were raised , some of the applicants resorted to less than truthful assertions about the natural conditions which exist in the area. Some of our property has been under water for three and a half months. This is natural and has happened for at least a century. It happens to varying degrees and is dependant on the levels of the lake nearby in the fall and the amount of snowfall which we receive in the winter, though there has been form time to time water levels which have risen sufficiently in the fall to fill the area with water. Most of this water is the result of that rise in water levels of Silver Lake, initially due to the snow melt in the spring, but then sustained this year by copious amounts of rainfall in April, May and June. These areas have been under water from March into July a period of four months. Because this water connects to Silver Lake and to a P1, pond zone site which has been allowed to be substantially filled under a sand dune permit (the wetland delineations did not include the whole of the Maine geologic Survey Pond Zone of only a small vegetative criteria delineated wetland was reserved from that fill), any activities on the permitted site which allow fill and or the location of septic leach fields (see Septic Failures in Silver Lake here) necessarily affects our property as well as that of others in the Silver Lake Watershed and the groundwater from which this water is the source of our drinking water supply. Any conditions contained in the permits issued therefore have impacts which reach beyond the confines of the property to which they issued, and yet I am helpless to affect any response from DEP where those permits have an adverse affect on my property. The DEP response has been instead to ignore violations, allow extended periods of time to lapse before citing violations and requiring the activities in these "protected natural resource areas" to cease, and so allowing such activities as rentals which enrich the violating individuals to whom permits are issued, despite my property being jeopardized by; inadequate consideration of conditions present which may cause potentially contaminating parking lots; septic tanks installations in sand which then becomes covered with water causing failures as have happened - click here-this spring with no response from DEP despite introduction of more fill into wetlands to remedy the faulty installation; and the installation of leech fields within the permitted areas which are covered by water with the rise in lake levels. All of this has had, is having or will have dramatic impacts to those areas outside the permitted zones.

"In making this determination, the department considers such factors as the size of the alteration, functions of the impacted area, existing development or character of the area in and around the alteration site, elevation differences and hydrological connection to surface water or other protected natural resources, among other things."

In my opinion NONE of the above considerations were brought to bear on the permitting process in the two projects abutting our property. This is a gross lack of responsibility on the part of the agency which by law is mandated to protect all of the citizens of the State from adverse impacts on their property and resources due to development in "protected resource" areas.