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Legal Frameworks for Protecting Water Quality




 Aerial photos such as this one of the York River provide us with an important tool for visualizing resources and for use in conservation planning.  The green swaths visible at the sides of the marshes are forested buffers integral to supporting water quality in the river.  By maintaining these features we can limit the input of non-point source pollution into waterways.

The connection between water and land is significant because most human activities that affect water happen on land.  One of the greatest challenges society faces today is the management of human activity.   As human population expands, protecting water sources and functions becomes increasingly difficult.  One of the most effective methods for society to limit impacts on water resources is the creation of legal frameworks to guide development and protect natural landscapes.

Sen. Edmund Muskie, author
of the Clean Water Act.

The Clean Water Act was enacted in 1972.  It directs the federal government to “restore and maintain the chemical, physical and biological integrity of the Nation’s waters”.  The main method for addressing this goal is to establish water quality standards (this is done by the U.S. EPA) and implement water quality monitoring programs to see if standards are being met.  The Act allows the U.S. EPA to regulate wastewater discharge into rivers and streams.  Other programs originating from the Act support research to address areas where water quality standards are not met and how to restore these sites.  For example, research and monitoring of the nation’s estuaries is required by the Clean Water Act.  In the same year, the Coastal Zone Management Act established the National Estuarine Research Reserve System, which continually monitor water quality around the coast of the U.S.

 


Quite often the most effective legal protections for natural resources are created and implemented at the municipal level.  Land Use Ordinances are the primary mechanism available to town governments for preserving ecosystem functions and guiding growth.  Used in conjunction with land use and comprehensive plans, ordinances can allow towns to control the course of development, and ultimately the quality of natural resources within their communities.  Some examples of these ordinances are:


Shoreland Zoning has recently been mandated for all Maine towns, allowing them to follow the state standards or to create their own that exceed the state minimum.  Any zoning measure, shoreland zoning included, is rarely if ever retroactive: bare or grass-covered ground at the river’s edge is not required to be reforested, but existing buffers may not be altered once the ordinance takes effect.  Shoreland zoning sets restrictions on the size of new buildings and how close to the shore they can be built.  Certain activities, such as cutting of vegetation, are restricted in the shoreland zone which is defined by a map.  Protecting the shoreland zone is particularly critical in order to maintain and restore water quality because pollutants introduced there are highly likely to enter the river, pond, or ocean.  Many towns in Maine have decided to adopt the state standards.  The Town of Ogunquit is working to include several small streams in their shoreland overlay that they are not required to protect under the state minimum.  The conservation commission of Ogunquit recommended that the planning board include the streams because they contribute to a major estuary in the town.  (link to Ogunquit Official Zoning Map Draft)


Transfer of Development Rights
(TDR) is a tool that can be used to encourage land conservation in rural areas while directing growth towards traditional town centers.  A town may designate certain areas as receiving or “growth” zones.  Landowners in sending zones can then transfer the right to develop individual housing units to a developer in a designated growth zone and receive tax benefits for voluntarily giving up the rights to develop their own property.  The use of TDR is not widespread due to difficulties that arise including objections from landowners in the designated zones and speculation on the future value of rural land.   The Town of New Gloucester, ME has implemented a TDR zone but as yet no landowners or developers have participated.  The plan is currently undergoing revision. (link to New Gloucester TDR Zoning Map)


Conservation Subdivision Ordinances
can dictate the layout of proposed development to ensure that open space is preserved by clustering houses together.  The resulting green spaces provide area for recreational activities and act as buffers between neighboring developments.  Falmouth, ME has created a Resource Conservation Zoning Overlay District and an accompanying four step process for designing subdivisions in this district.  (link to Falmouth 4 step process and Falmouth RCZO)


Land Use Ordinance Performance Standards
can be established by which proposed development can be evaluated for impact to community values.  By holding development to these standards towns can preserve aesthetic, natural, and cultural resources.  Maine has a Subdivision Law which includes a list of twenty criteria by which subdivision projects are evaluated.  The law is purposefully vague to allow Towns to apply their own performance standards as well.  Brunswick, ME has created such standards which include preservation of natural features and net site area.  (link to Brunswick Subdivision Performance Standards)

Private land owners also have legal tools available to aid them in conserving the natural character of their communities.  Conservation Easements allow landowners to put legal measures in place restricting future development on property they own while deriving tax benefits.  When ownership of the land passes to another person these restrictions remain in place.  Typically conservation easements are developed in collaboration with local land trusts to ensure that the land will have a long term steward.  In 2005 a conservation easement was created in South Berwick, ME at the junction of the Salmon Falls and Great Works Rivers.  Robin Aikman, a generous landowner from Rollinsford, NH, worked with the Great Works Regional Land Trust to protect this parcel for its archaeological significance, importance as bird habitat, and its role as a buffer for water quality.

From broad federal legislation to town ordinances and individual land stewardship, legal protections for water resources can be used to great effect.  Ultimately, laws are only as effective as the will to implement and enforce them.  With vigilance and vision, humans can ensure that water resources will still be available for generations to come.


For more information on the Clean Water Act visit the EPA.

For more on Maine Shoreland Zoning visit the Maine DEP.

For more information about Land Use Ordinances visit Beginning With Habitat.

For more information on Conservation Easements visit the Maine Coast Heritage Trust.



 



     
The Wells National Estuarine Research Reserve at Laudholm Farm, Wells, Maine Copyright 2006 All rights reserved. Collaboration with NOAA CSC, Charleston SC