Special Town Vote on September 17th to include proposed Shoreland Ordinance Change

Maine’s Mandatory Shoreland Zoning Act, originally adopted in 1971, currently requires all municipalities to enforce shoreland ordinances. These ordinances regulate land use activities (e.g. agriculture, soil excavation, vegetation removal, development and more) within 250 feet of great ponds, rivers, freshwater and coastal wetlands, including all tidal waters; and within 75 feet of streams as defined. Shoreland is the marginal area between “dry” land and water ways. 

Phippsburg has a glorious ton of shoreland. Why is that shoreland so specifically protected? Simple: Shoreland is like our skin. It’s a highly porous, super delicate and totally important threshold, a boundary space, a place of constant exchange. Critters, people, nutrients, and other materials, massive and miniscule, welcome and unwelcome, cross back and forth across the shoreline. So does toxic run off. The shoreline also buffers rising storm surges–an increasingly significant element of coastal living. 

We often take healthy shoreland for granted, or minimize its “use” into the purely aesthetic. We also tend to take for granted the vulnerable waterways and mudflats shoreland abuts. And yet, paradoxically, we rely on healthy shorelines and waterways for everything from clean drinking water and local food harvest to the largely unquantifiable experience of living in a beautiful place. As a Maine Department of Environmental Protection (MDEP) official I recently spoke with said, scenic beauty is subjective, and therefor hard to formally protect, but if enough people in a community perceive beauty, or, say clean drinking water, healthy habitats and robust shoreline, to be resources worth protecting, an argument can be made.

The Maine coastline is itself like one big dynamic organism, a complex collection of systems in which we humans participate. The ways we participate are guided by our laws and cultural perceptions. These laws exist at federal, state and town levels. Phippsburg’s ordinances determine how we manage our relationships to each other and the ecosystems of this peninsula. 

The Phippsburg Planning Board has proposed a change to Phippsburg’s Shoreland Zoning Ordinance. I will say up front, before I jump into the nitty gritty, that, as someone hired to support Phippsburg’s fisheries, I don’t support these changes. Which is not to say that I don’t support any changes to the ordinance. I’ll explain this difference.

First, what are these changes, precisely, and how did they come about?

There are five possible districts in Phippsburg’s Shoreland Zone. Resource protection, stream protection, general development, village, and residential. Each district has its own varying degree of protections and permitting requirements for disruptive land use. 

Currently, Phippsburg’s Shoreland Zoning map places large sections of the shoreland in resource protection. For those concerned about the health of mudflats, waterways, drinking water, vulnerable habitats and rate of development, that’s a good thing. Tree-cutting, among many other activities, such as agriculture, multi-unit development, excavation and roadway building, is limited in resource protection–or requires a longer permitting process through the planning board or code enforcement officer. 

In recent years, however, it came to the MDEP’s attention that limitations on tree-cutting were not being properly enforced in the resource protection areas. Upon further review of Phippsburg’s shoreland ordinance and map, the MDEP noticed a discrepancy: The language of the shoreland ordinance did not support the map’s designated areas of resource protection. That is, the ordinance language was lacking specificity. The DEP wanted to know: What, precisely, were the resources that the Town of Phippsburg was declaring were in these resource protection areas? 

The MDEP’s Chapter 1000 (Guidelines for Municipal Shoreland Zoning Ordinances) recognizes that each Maine municipality has unique environments and needs. Therefore, it states that each municipality may adopt their own ordinance language specific to these needs. That is, contrary to the planning board’s suggestion at the August 25 public hearing, the needs of any community should not simply be reduced or changed to align with those of other, local towns but be reflective of collective, specific community needs and environment. In fact, the MDEP “encourages municipalities to consider local planning documents,” such as comprehensive plans or environmental vulnerability assessments. Both such documents will be made available to the town by the end of the year. So what’s the rush on voting through ordinance changes without evidence that the changes support the community’s needs? 

It is for each town to decide, within the scope of state and federal regulations, what their vulnerable shoreland resources are. The health of the shore at the edge of a mudflat has a great impact on that mudflat’s health and subsequent productivity. Increased development and vegetation removal will have long-term and irreversible impacts to mudflats. A recharge area is a natural space through which water spills towards underground drinking wells. These areas and more can be considered resources, if a community suggests that they are important to protect. 

But as the MDEP states, a municipality’s specific ordinance language and map must agree with each other. Currently, Phippsburg’s ordinance language does not clearly define what the resources are and so our map appears arbitrary and ambiguous. That is the issue Phippsburg needs to correct.

Should Phippsburg’s ordinance specify with more clarity what the resources are in the current areas of resource protection, the discrepancy would be resolved and the current resource areas could be maintained–and better understood.

What resources do you value? What is important to you, as a community member living on these shores and the edges of wetlands, to preserve? 

Hoping for clarity.

On August 25th, a public hearing was held to address these proposed changes. Nearly 200 community members attended, hoping for clarity. Certainly, I arrived with little background knowledge of the current ordinance language or the relevant interactions between the town and the DEP. 

The planning board’s overarching reason given for the proposed changes was that the cutting of vegetation had not been properly enforced–people had been cutting more trees than was strictly allowed. So, the planning board said, the solution was to shift the language of the ordinance to meet the actions or desires of the people. 

After a brief moment, a community member rose to describe a hypothetical situation in which the laws were changed to allow for petty theft because people just wouldn’t stop stealing. 

And it seems that the public hearing missed the point. As discussed below, while tree-cutting and its problems of enforcement were indeed the impetus for these changes, tree-cutting is not the only activity impacted by the proposed changes.

Nevertheless, the continuing conversation focused nearly entirely on tree-cutting and the possibility of increased erosion on the shoreline.

When asked if any studies had been done to better understand how this proposed change would impact Phippsburg specifically, the planning board said that no such research had been done. As mentioned, the MDEP’s Guidelines for Municipal Shoreland Zoning Ordinance states that municipal-specific knowledge is crucial to such an ordinance change. 

And when asked if it was the Shoreland Zoning map, upon which all focus had so far been directed, that the public would be voting on on September 17th, the planning board responded affirmatively. 

As of this writing, however, the proposed change to the ordinance language remains on the September 17th warrant. And it is the change to language that will change the allowable activities in Phippsburg’s shoreland. 

It is important to show up on Thursday, September 17th and vote. A “no” vote now does not mean that Phippsburg cannot in the future amend the ordinance language to agree with both the map and community needs. Instead, a no vote simply buys a bit more time to better understand these needs and thus create a better ordinance. There are few items on the warrant. It will be a brief night. The implications, however, of this ordinance change passing are potentially long-lasting. 

Though a town vote will decide these changes, the Maine Department of Environmental Protection (MDEP) must review and confirm the changes. Should they find that the reasons for the change are unclear or misguided, they will not confirm it.

So what does the language change actually do? 

Is it really all about tree-cutting? Or was it a lack of proper tree-cutting enforcement that simply drew the DEP’s attention to Phippsburg’s Shoreland Zoning Ordinance in general?

In the current Shoreland Zoning Map, some shoreland areas are marked as both residential and resource protection districts. In the proposed ordinance change, any shoreland area that can be qualified as residential will not also be qualified as resource protection. 

I can imagine that, as it stands, the potential double qualification as both residential and resource protection districts proves to be a constant headache for the members planning board. Ambiguity of this kind likely necessitates constant interpretation, which means more work for the planning board. That’s tough. 

I work with the Phippsburg clam diggers who often describe how nonpoint source pollution spills into the mudflats from upriver and upland, degrading the flats. This is a different sort of headache. Nonpoint source pollution is that which is picked up and carried by snowmelt and rainfall running over and through ground and flowing into waterways. It’s hard to track and, if a chronic problem, environmentally devastating. The proposed changes to the ordinance, reducing the areas of resource protection, will increase nonpoint source pollution. 

On page 12, Section 14, Table 1 of the current shoreland zoning ordinance, the different levels of protection for each type of district are laid out. You can find this ordinance on the town website. The districts of concern in this proposed ordinance change are resource protection (RP) and residential (R). The permitting and protections for residential districts are much looser than they are for resource protection districts. 

Sure, the land use activities in question must still meet town, state and federal regulations for shoreland use, under the State’s Mandatory Shoreland Zoning Act. But as we now know that effective code enforcement has been a tricky issue for Phippsburg officials, I am hesitant to support changes before I understand how their enforcement would sustainably function. 

The future is hard to predict. A few things we can say for sure: Ecological instability and social inequity are deeply linked. Ecological instability and social inequity will continue to increase. They will increase more rapidly if we roll back current protections. 

I asked a DEP official their personal opinion on rolling back coastal conservation efforts during this moment of increasing vulnerability. Their personal outlook, they said, was separate from their function as state official. But “once this protection is taken away, you’re not going to get it back. Everything points towards more vulnerability, more damage–vegetation does a lot for that.”

The changes in summary: 

The proposed ordinance changes will likely increase the potential for development and other disruptive land use in Phippsburg’s shoreland. Increased development and vegetation removal will likely lead to greater erosion, putting properties and roadways at risk and increasing harmful runoff into waterways and mudflats. This will endanger an already vulnerable but absolutely crucial set of habitats and harvesting areas, ultimately harming Phippsburg’s community.

I try to lean away from being overly alarmist. This, however, is a pragmatic moment to feel alarmed. 

On development:

There is, perhaps, an argument to be made that increased development will alleviate some of Phippsburg’s housing crisis. I am of the opinion, however, that there are many other variables and options at play here. In a town with little capacity to sprawl, lot and building size are of significant concern. As a state official commented, of the houses likely to be built in new development areas: “These aren’t little family camps anymore… Almost all [new] coastal property is million dollar stuff. It’s money. It’s big money.” 

Far more than a lack of new building units drives the housing crisis. Local jobs must also be created and supported. Many of our local jobs depend on healthy fisheries. Rising taxes, lack of public transit, threats of school closure, second homes and rentals sitting empty, blooming blueprint sizes, rising cost of living, a national reluctance to adopt the affordable health care systems that our G7 peer nations have–I could go on. The point is that there are many variables that impact what makes a house, or a community, affordable. Making way for development does not necessarily make way for development that would benefit the people that already live and work here.

All across Maine, lack of capacity is an increasing issue.

That the Phippsburg planning board–a group of volunteers–is increasingly overworked seems evident. It’s a tough job, one that just keeps getting tougher, I’m guessing. Requests for permits increase with amenity migration. Indeed, when I was looking for the meeting minutes summarizing the conversations about this proposed shoreland ordinance change, I found instead that their Sunday meetings involve constant scrutinization of shoreland permit applications.

In small towns, as we know, volunteers and town officials wear many hats. That a core group of people often volunteer for town boards and committees is an amazing example of community leadership. But it does mean that volunteer hours and energy can get stretched thin.

All across Maine, lack of capacity is an increasing issue. There are ever more people, systems, patterns, and problems to understand and contend with. This increases the workload for committees, boards, and volunteer groups. I don’t know what the solution is to an overworked board of volunteers. 

I do know, however, that loosening regulations to lighten a workload is not the answer at any time, and especially not in a moment when the only predictable element of the future is its growing ecological and social instability. 

Of further and significant note: Where did our freshwater wetlands go?

On Phippsburg’s current map, “freshwater wetlands” are depicted in dark green. Freshwater wetlands are not one of the five shoreland zone districts. Instead, freshwater wetlands are protected under Maine’s Natural Resource Protections Act. 

I found it of note, then, that on the proposed map, that dark green area that had marked Phippsburg’s freshwater wetlands had been lumped into the remaining resource protection areas. The term “freshwater wetland” had been removed from the map key. 

I reached out to the DEP to ask about this and various other changes, trying to make sense of all the jargon and possible implications. Would this lumping of freshwater wetlands into resource protection likely result in different code enforcement? 

As it turns out, the DEP had recommended that the planning board (or the Viewshed consultant hired to make the map) put freshwater wetlands back into the map, after it had been taken it out. The protection of freshwater wetlands are not to be decided at the town level. They have been protected by Maine’s Natural Resource Protection Act since 1988.

Here’s the defined purpose of that act (with my bold):  

"The Legislature finds and declares that the State's rivers and streams, great ponds, fragile mountain areas, freshwater wetlands, significant wildlife habitat, coastal wetlands and coastal sand dune systems are resources of state significance. These resources have great scenic beauty and unique characteristics, unsurpassed recreational, cultural, historical and environmental value of present and future benefit to the citizens of the State and that uses are causing the rapid degradation and, in some cases, the destruction of these critical resources, producing significant adverse economic and environmental impacts and threatening the health, safety and general welfare of the citizens of the State."

Phippsburg’s Shoreland Zoning Map and language will be consulted by developers, residents, code enforcement officers, and board and committee members. It is crucial to accurately represent town, state and federally-recognized resources on this map. Permitting oversights and accidents are not just paperwork issues. They can lead to irreversible damage to a community’s social and ecological health. 

Further and future thought. 

There are positives here. This is an opportunity to better understand and help remedy volunteer overwork and enforcement issues and to educate ourselves as a community about how and why we protect natural systems. How can this shoreland ordinance confusion lead to better methodologies in future town planning? 

Finally, and crucially, I would like to note that these conversations of who owns what on this coast all happen within the context of the Wabanaki Nations’ deep history. Their ongoing fight for tribal sovereignty in this state is not separate from these systems discussed. These town ordinances and regulations are, like, say, green crabs, and were introduced from another continent. They have evolved in the weird cultural environment that is American individualism. Just food for thought. 

If you’d like to talk further about anything here, provide a correction or insight, please do reach out.