SENSITIVE AREAS

INTRODUCTION

The Introduction of this Comprehensive Plan briefly describes the events leading to the passage of the Maryland Economic Growth, Resource Protection, and Planning Act of 1992. One of the ways in which this Act has a direct impact on this Comprehensive Plan, is the subject of this Chapter.

The mandate to include a Sensitive Areas Element in local comprehensive plans has subsequently been codified in Article 66B of the Annotated Code of Maryland as follows:

[The plan shall include] a sensitive area element that contains goals, objectives, principles, policies, and standards designed to protect, from the adverse effects of development, sensitive areas, including the following: 1) streams and their buffers; 2) 100-year floodplains; 3) habitats of threatened and endangered species, and 4) steep slopes. (§ 3.05 (a)(1)(viii), Article 66B, Annotated Code of Maryland.)

Therefore the purpose of this chapter is to discuss these areas as well as ways in which they might appropriately be protected in Easton.

BACKGROUND

When discussing sensitive areas in Easton it is important to note a couple of issues. The first issue is the nature of Easton itself. Easton is a relatively small town experiencing growth pressures akin, in many ways, to those present in towns and suburbs in metropolitan areas. In addition, the Growth Act has the potential to escalate these pressures as State and County policies direct growth into Easton and its environs. Another issue is that Easton is very unique, particularly among Eastern Shore jurisdictions, in that it is not (at least presently) located on a major body of water. In fact, there are not even that many minor bodies of water in or very close to Easton. Finally, it must be noted that Easton has a fairly extensive system of Environmental Protection regulations already in place. Easton's Critical Area Program, Forest Conservation Ordinance, Floodplain Ordinance and Stormwater Management Ordinance provide a high level of protection to a number of sensitive areas, including those identified by the Growth Act.

To summarize then, Easton is a small Town that is: (1) experiencing fairly significant growth pressures; (2) does not have many sensitive areas at the present time; and (3) already provides a relatively high level of protection to those sensitive areas that do exist. Given this set of circumstances, it is clear that no extensive or elaborate measures are necessary to protect Sensitive Areas in Easton.

Streams and their Buffers - The importance of streams has been rather well documented, particularly in recent years with rising concern over the health of the Chesapeake Bay. The Maryland Office of Planning has summarized the justification for protecting streams rather succinctly as follows:

Streams and their buffers are valuable to people and vital to our natural resources. Streams provide drinking water for local communities, and crop-saving irrigation for farmers during droughts. Streams support recreational fishing and serve as spawning areas for commercial fish stock; and streams attract many outdoor enthusiasts such as hunters, bird-watchers, and nature photographers. Without adequate and sustained cooling water in streams and rivers, industries and power plants would pass higher costs on to consumers. Development near stream areas subject to flooding could result in the loss of life and property.

Streams and their buffers are home to countless species of animals and plants; and streams themselves serve as lifelines to the Bay, transporting valuable nutrients, minerals, and vitamins to the Chesapeake. The floodplains, wetlands, and wooded slopes along streams are very important parts of the stream ecosystem, and in many ways determine the diversity and health of a stream. (From Managing Maryland's Growth: Models and Guidelines - Preparing a Sensitive Areas Element for the Comprehensive Plan, Maryland Office of Planning, May 1993).

The importance of streams is irrefutable. It is also perhaps better understood by residents, particularly long-time natives, of Maryland's Eastern Shore than the average citizen in any other part of the State. Streams have been of paramount importance on the Eastern Shore since the founding of the region. Early in this history, streams were used as transportation routes and virtually every Town or settlement of any size was founded along the shores of a river or stream. As the region grew, streams remained crucial for the many links they provided to the seafood industry on which much of this region depended.

While the importance of streams is well-documented and fairly readily accepted, the need for additional protection measures in the Town of Easton is not as readily apparent. This is due to the fact that all streams receive some level of protection. Tidal streams are protected by the Chesapeake Bay Critical Area Law and the Town's Critical Area Program. This requires, among other things, that runoff from properties within this area reduce the levels of pollutant loading by 10% based on the pre-development conditions and that virtually no development whatsoever occur within 100 feet of the mean high water line of the corresponding body of water. Non-tidal streams are governed by State and/or Federal non-tidal wetlands laws and include a 25 foot buffer within which no development can occur. State officials have suggested that to be truly effective, this width should be increased to 50 to 100 feet.

Given these conditions and the reality that State, County, and Town of Easton growth policies all assert that growth should be concentrated in and around Easton, little additional protection is necessary or practical, beyond increasing the stream buffer width to 50 feet. The most effective way in which streams and their buffers can be protected in Easton is through the early identification of this feature in the site planning and development process and adherence to the Design Principles as outlined in the Land Use and Growth Chapter. The second principle, "Natural Features should Determine Design," is particularly appropriate.

100-Year Floodplains - The 100-year floodplain is another Sensitive Area which is not very prevalent in Easton. In fact, in a recent Community Assistance Visit with the State Department of Natural Resources concerning Easton's Floodplain Program, it was estimated that there are only 15 persons residing in the floodplain in the Town of Easton. In addition, it was estimated that there are six residential structures, two publicly-owned structures (utilities complex) and seven "other" structures located in the special flood hazard area. There were no permits issued for any structures in the floodplain between Community Assistance Visits (1993-1996).

The Town of Easton's Floodplain Ordinance does not prohibit development within the 100-year floodplain. This is consistent with the National Model Ordinance and the National Flood Insurance Program. Structures may be constructed in the floodplain provided they are either elevated above the level of the 100-year flood or otherwise flood-proofed in an acceptable manner. Severely limiting development in floodplain areas protects not only human life and property, it also protects sensitive ecological areas and water quality from degradation.

While the Town does not explicitly prohibit development in the floodplain, it strongly discourages such activity. This is almost never a problem because (1) the floodplain in Easton is generally very narrow; (2) it is usually otherwise undevelopable; and (3) there is virtually always ample room elsewhere on the lot or parcel in question on which to develop. Given these factors, no additional protection measures for 100-year floodplains are deemed to be necessary in Easton at this time.

Habitats of Threatened and Endangered Species - Perhaps the component of the four Sensitive Areas addressed in this element which, at least potentially, is the least protected in Easton is Habitats of Threatened and Endangered Species. This is due to the fact that there is one circumstance under which this area is not addressed. That is development that proceeds in accordance with any of the "Declarations of Intent" under the terms of Easton's Forest Conservation Ordinance.

Presently, development within the Chesapeake Bay Critical Area must address the issue of Threatened and Endangered Species as do any projects subject to the full requirements of the Forest Conservation Ordinance. Most projects, particularly large projects will require at least a Simplified Forest Stand Delineation which would indicate Habitats of Threatened and Endangered Species. This would then become a basis for designing the development with such sensitive areas being the prime location for protection.

There are, however, some projects which never advance to this stage of the Forest Conservation review process because they qualify for an exemption from the program subject to one of a number of Declarations of Intent. The most frequently utilized Declaration of Intent is the Single Lot Exemption. This applies when development occurs on a single lot of record of any size provided that no more than 40,000 square feet of forest will be cleared in conjunction with the development. It is conceivable that within the 40,000 square feet of forest there may be a Habitat of a Threatened and Endangered Species.

The Delmarva fox squirrel, a state and federally listed endangered species, is known to occur on the property designated as future residential development to the southwest of the town of Easton. Delmarva fox squirrel habitat is generally characterized as forests with relatively mature trees, either hardwoods or loblolly pine, with a relatively sparse understory.

If proposed activities do not occur within the forested areas on the property, then Delmarva fox squirrel habitat will not be impacted. However, if development in the forested areas or timber harvesting is being planned, the following should be considered:

1. As much contiguous forested acreage as possible should be retained.

2. If clearing is necessary, at least 25% of the suitable forested area should remain unaltered or a minimum of 10 acres whichever is greater.

3. This unaltered Delmarva fox squirrel habitat should be retained as a contiguous forested tract, not as small disjunct parcels.

4. Required forested buffers, such as buffers along streams or nontidal wetlands, should be expanded to at least 100 feet and preferably 300 feet in width.

5. Retention of mast producing trees such as oaks, hickories and beech is encouraged.

These general guidelines are used by HBCP biologists for Delmarva fox squirrel habitat protection. For more specific technical assistance regarding projects relative to Delmarva fox squirrel protection interested individuals should contact the Maryland Department of Natural Resources.

There is a Least Tern colony located at Easton High School and at the United States Post Office Sorting Center on Commerce Drive. Least Terns are listed as a threatened species in Maryland. State law (§10-2A-01/09) requires the Department of Natural Resources and all other units of Maryland state government to take every practical step to conserve listed species. Significant mortality of chicks or eggs resulting from disturbance of the colony during the breeding season is a violation of the U.S. Migratory Bird Treaty Act.

Least Terns establish nesting colonies at predator and disturbance free barren areas of sand and/or gravel. In natural situations these areas are beaches or small islands. High quality locations, such as coastal barrier beaches can be used for many years, poorer locations are normally only occupied for a few years. The pressures of growth and development in Maryland have resulted in a scarcity of high quality natural sites and Least Terns now frequently nest at "unnatural" locations such as building roofs, dredged material islands, and areas graded just prior to development. Most colony sites are located within 1 mile of water, and often within sight of water.

To protect natural Least Tern colonies the Maryland Department of Natural Resources uses the following guidelines:

1. Establish a protection area of 660 feet from the colony’s outer boundary. Within this area, establish two zones of protection: Zone1 extends from the outer boundary of the colony to a radius of 330 feet, and Zone 2 extends from 330 feet to 660 feet in radius.

2. During the breeding season, all human entry into Zone 1 should be restricted to only that essential for protection of the Least Tern colony. Human disturbance of colony sites that results in significant mortality of eggs and/or chicks is considered a prohibited taking under various state and federal regulations.

3. No land use changes, including development and intensive recreational use, should occur in Zone 1.

4. Construction activities, including clearing, grading, building etc. should not occur within Zone 1.

5. No construction, or other disturbing activities, should occur within Zones 1 and 2 during the Least Tern breeding season, from 15 April through 31 July.

Building roofs, dredged material disposal areas and other situations where Least Terns have been attracted to unnatural nest sites are treated on a case-by-case basis. For specific technical assistance regarding Least Terns, the Maryland Department of Natural Resources should be contacted for technical assistance. In these unnatural situations, even seemingly routine actions, such as air conditioner repair, pose a serious risk of egg and chick mortality and must be avoided. For roof nesting Least Tern colonies, roof work during the period 15 April through 31 July must be severely restricted. Planned roof work should be conducted outside the breeding season, when terns are not using the roof for nesting. If emergency repairs are necessary during the April-July period, contact the technical expert identified below before initiating any work. The DNR will provide assistance with protecting the terns while the emergency work is conducted.

In addition, there are two sites that are known historic waterfowl concentration areas, which occur immediately adjacent to areas delineated on the comprehensive plan draft map. These are Papermill Pond, off the Tred Avon River, and a portion of Peachblossom Creek.

The only recommended action to protect Threatened and Endangered Species in Easton is to close the loophole concerning development which occurs subject to a Forest Conservation Declaration of Intent. Otherwise this aspect of the Sensitive Areas Element is covered and should be addressed during the early stages of site planning or subdivision process.

Steep Slopes - Whereas Habitats of Threatened and Endangered Species was the one component of the Sensitive Areas Element requiring the greatest additional protection in Easton, Steep Slopes is the component requiring the least. The Maryland Office of Planning recognized this in their guidelines on this subject when they stated:

Some parts of the Eastern Shore have few steep slopes. The objective in these areas should be to effectively protect steep slopes, but to do so efficiently. If the background study from the Comprehensive Plan indicates, for example, that most of the significant steep slopes are along rivers and streams, then steep slope protection may be more reasonably accomplished by protecting the stream buffer system, rather than by a separate "slope" regulation. (Maryland Office of Planning, May 1993).

The situation described in this passage is, in fact, the case in Easton. Virtually all steep slopes are located either in the Chesapeake Bay Critical Area or adjacent to a non-tidal wetland. In both cases they are included in buffers within which no development may occur. If there are any rare cases in which steep slope exist outside one of these two areas, they should be identified during the sketch site plan or subdivision plan step in the development review process. Again, adherence to the design principle, "Natural Features Should Determine Design" should adequately protect this sensitive area.

SENSITIVE AREAS MAP

A Sensitive Areas Map has been located at the conclusion of this chapter. It includes the Chesapeake Bay Critical Area boundary, floodplains, forest areas, and streams with a 50 foot buffer. This Map should be consulted early in the site planning process by prospective developers in the Town of Easton. However, it must be emphasized that this Map is very general. It should not be taken as anything more than a general guideline of potential environmental constraints to development. The most important part of this stage of site planning still involves field work to determine the exact location and inclusion of all of the environmental features on a given site.

 SENSITIVE AREAS GOALS, OBJECTIVES, AND IMPLEMENTATION STRATEGIES

GOAL

To protect and, where possible, enhance the natural environment of the Town of Easton and its environs while recognizing the role of the Town as a regional growth center.

OBJECTIVES

IMPLEMENTATION STRATEGIES