Both sides pleased with BEP decision on MBNA Ducktrap plan

By Lynda Clancy | Mar 17, 2000

Augusta — Both MBNA and the Coastal Waters Project were pleased with yesterday's decision by the Maine Board of Environmental Protection concerning a state permit allowing 40 cabins to be built on Ducktrap Mountain in Northport.

While the Coastal Waters appeal of the permit eventually was denied during the BEP hearing in Augusta, the board did amend MBNA's permit, telling the credit card company to establish a conservation easement on approximately 133 acres of its Northport land.

"It was a Pyhrric victory," said Ron Huber, director of Coastal Waters Project, an association whose goal is to "restore and protect the integrity of the nearshore waters of the Gulf of Maine through local oversight and citizen action."

"We got a lot more than expected," Huber said, immediately following the hearing.

"MBNA prevailed," said Philip Ahrens, an attorney with the Portland firm Pierce Atwood, representing MBNA.

"We were pleased with the decision," said Shane Flynn, MBNA's regional director.

Also offering testimony at the hearing were Lincolnville resident Corelynn Senn and Camden kayak business owner Mike Ray, both speaking about the cumulative loss of habitat and regional impacts of the development.

Andrew Cadot, a member of the citizen advisory BEP, motioned that MBNA "shall, by march 30, 2000, submit to the [DEP] for review, acceptance, and recording a conservation easement in favor of Inland Fisheries and Wildlife, or other government or non-government entities, permanently protecting the management area and travel corridor described in the final Forest Management and Deer Wintering Area Management Plan dated February 2000 and accepted by IF&W on March 6, 2000."

MBNA protested that amendment.

Ahrens, the MBNA attorney, said the easement added another unnecessary layer of legal work. He characterized the easement as an "intrusion on MBNA to manage this land as best they could." He cited the restriction as potentially hurting business.

Ahrens said MBNA had no plans to develop the deeryard.

"I just don't know how it would happen," he said, citing the regulatory process would have to include approval from several different state agencies.

Ahrens said MBNA was already involved in talks with various

organizations, including the Maine Coast Heritage Trust, about different pieces of land.

Flynn said on Friday that MBNA is also working with other environmental organizations, including the Ducktrap Coalition, about its property.

At the Thursday hearing, board member Cadot argued in favor of ensuring the land in question remain protected.

The easement adds "a little bit higher hurdle," Cadot said.

The board voted unanimously in favor of Cadot's motion.

The land that the BEP wants included in the easement incorporates approximately 160 acres of targeted deer habitat on Ducktrap Mountain. That acreage is included in the 254-acre Northport parcel owned by MBNA, which created a forest management and deer wintering area management plan for that 160 acres.

MBNA consultant Rick Jones, of Jones Associates, said at the hearing that MBNA intended to not just protect the deeryard but intensively manage it and maintain quality deer habitat.

The company uses its Northport land for recreational purposes and has built a conference center near the top of the mountain. Prior to MBNA's purchase of its parcel, during the 1980s, a subdivision had been sited on that land and a road had been constructed up the mountain.

Since 1996, the DEP has approved multiple MBNA projects for the Northport parcel, including a two-story conference building, garage, utility shed, function building, pavilion, additions to the conference center, fitness center, softball field, and finally, the 40 cabins and 10-foot-wide access drive serving the cabins. The cabins are now under construction and will be ready for the summer season, Flynn said.

The majority of the cabins are under construction in the deeryard, which IF&W and the DEP recognized as posing a significant impact on the deer wintering area. MBNA proposed in its application to manage 160 acres of deer wintering shelter and travel corridor, upgrading that habitat to include more softwood than hardwood.

Northport lacks its own land use ordinance, and MBNA did not need to obtain, other than building permits, variances or permits from the town.

In its final permit, the DEP said: "IF&W has reviewed the plan and plan sheet and comments that it is comfortable with the applicant's design of the proposed deer management area to mitigate onsite development. IF&W indicates that a final version of the plan is needed that includes a cooperative agreement section (with terms and conditions, perpetuity, a signature page, a resolution of disagreement page, and a section that provides for future plan review dates).

Also included in Huber's six-count appeal was his opinion that the DEP failed to consider cumulative offsite impacts of the development and its greater regional effects.

"The DEP chose to use reverse binoculars" in looking at the application, Huber said.

Ray, who was an interested party as defined by the DEP during the permit process, said in his experience operating a small guide service on West Penobscot Bay that: "The DEP seriously dropped the ball on notifying smaller parties" about the permit stages.

Senn, who lives on the Lincolnville side of Ducktrap Mountain, said she has seen within the past month an increase in the number of deer and other wildlife traveling across her property, suggesting those animals have been displaced by the construction of the cabins.

"Old timers are saying these deer are trying to yard," she said.

For procedural reasons, the BEP did not allow into yesterday's record what Huber referred to as additional evidence from the Department of Transportation and the Waldo County Sheriff concerning an increase in deer accidents along Route 1 in the area under discussion.

Senn suggested MBNA and area landowners establish a comprehensive management plan for that area, noting that coyote, bobcats, and eagles also populate Ducktrap Mountain.

BEP board member Ernest Hilton said he sympathized with the emphasis on regional impacts and that the DEP should be taking a more substantial role in evaluating the broader environmental effects, including the "incursion on the upper Camden Hills."

"I think Mr. Huber has a strong and valuable point," Hilton said, adding he was disappointed the DEP did not cover it. "I think that MBNA does need to attend to this in some respect."

Coastal Waters' appeal also maintained the DEP did not offer adequate public notice, comment period, or a hearing between the time the DEP issued is draft permit and signing the final permit. Huber said substantial changes were made to the draft permit, which should have triggered another public comment period.

Board member Virginia Plummer said the BEP and the DEP should address what the threshold might be for holding subsequent public hearings.

Coastal Waters appealed what it called:

� " Maine DEP's failure to follow Chapter Two rules requiring public notice and stakeholder notification when significant alterations to an application are submitted by the applicant following the close of the comment period.

� The permit's violation of the parameters set by Maine Department of Inland Fish and Wildlife as the maximum acceptable disturbance and intrusion into the Ducktrap Deeryard.

� The Department's failure to require review of indirect and direct offsite impacts, pursuant to the Site Location of Development Act, as is required when the municipality in question lacks zoning authority.

� The Department's failure to require a review of the indirect and direct offsite impacts of the applicant's existing development on the mountain, pursuant to the Site Location of Development Act, as is required when the application in question is an amendment of an existing application.

� The Department's failure to hold a public hearing on the proposal despite significant public interest

� The Department's failure to correctly coordinate with the New England Fishery Management Council to examine the impacts to endangered atlantic salmon during the fish's usage of Ducktrap Harbor, which is managed, along with Ducktrap River, as Habitat Area of Particular Concern for Atlantic Salmon, under the federal Sustainable Fisheries Act."

The BEP's three other amendments to the permit included:

� adding to the end of a sentence: "The project does not propose any withdrawal from, or discharge tom any groundwater 'except for withdrawals from up to 16 onsite wells."

� Adding to a sentence: "IFW, MASC, and NEFMC have reveiwed the location of the proposed cabins and have not identified any concerns about the project's impacts to the Ducktrap River, 'Ducktrap Harbor,' or Atlantic Salmon.

� Adding: There is no record of any known or unusual features on the property, and appellant has produced no evidence of any. The Maine Natural Areas Program reviewed its database and found no documentation of any rare botanical features within the project area, but in the absence of a specific field investigation, it could not provide a definitive statement on the presence or absence of unusual natural features."
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