Issue Profile
Excavations for Borrow, Topsoil, Clay, Silt -- Notice of Intent to Comply & Statutory Performance Standards

Reviewed: March 2018              (207) 899-6879            DEPLW0317-D2006


Excavations for sand, gravel and fill that are more than 5 acres in size, or that have expanded by more than 5 acres since 1970, are regulated under the Site Location of Development Law (Site Law). In April 1996, the Legislature amended this law, creating a new program for regulating excavations for borrow, topsoil, clay and silt. This law removes the regulation of these commodities from the Site Law and places them into a performance-based registration system.

(See below for information regarding operations of less than 5 acres.)

What is the intent of new law?

The law establishes a new procedure for ensuring that excavations greater than 5 acres meet environmental standards. This procedure is intended to save applicants the time and expense of filing a permit application with the DEP, while establishing standards which the excavation activity must meet. If you meet all the applicable performance standards, you do not have to file a complete application. Before beginning the excavation activity, however, you must file a "notice of intent to comply" on a form provided by the DEP.

What types of standards are linked to the new rules?

The standards for excavations under the program include provisions for:

  • Protection of significant wildlife habitat
  • Disposal of solid waste (stumps and land clearing debris)
  • Ground water protection
  • Natural buffer strips for protected natural resources
  • Setbacks for both private and public roads
  • Natural buffer strips between the limit of excavation and property boundaries
  • Erosion and sedimentation control
  • Surface water protection and storm water management
  • Traffic
  • Noise
  • Dust Control
  • Reclamation

What are the eligibility requirements of the law?

To qualify under the new procedure, your operation cannot be located in the unorganized townships of the State or located in a protected natural resource such as a river.

If I am eligible, what is the next step?

Obtain a "Notice of Intent to Comply" package from the DEP.

  • Seven days before filing the completed package with the Department:
    1. Send a copy of the "notice form" to each abutting property owner; and
    2. Send a copy of the competed package to the municipality.
  • When you file the completed package with DEP:
    1. Retain a copy for your records;
    2. Send the orginal to DEP's Augusta office, certified mail/return receipt requested;and
    3. Send a copy of the completed package to the Maine Historic Preservation Commission.

Is there any additional information required by DEP?

Yes, a site plan, drawn to scale, of the project site is required. This plan must show the property boundaries, stockpile areas, existing reclaimed and unreclaimed lands, proposed maximum acreage of all affected land, all applicable private and public drinking water supplies and all existing or proposed solid waste disposal areas.

Is there a fee for filing a Notice of Intent to Comply?

Yes, a fee of $250 is required upon filing a Notice of Intent to Comply. The new law also establishes an annual fee requirement so that funding is available to carry out the provisions of the law. The annual fee is due March 1 of each year. The annual fee schedule is as follows:

  • $400 for operations that extract more than 2500 cubic yards of material during the year; or
  • $100 for operations that extract less than 2500 cubic yards per calendar year, if the owner or operator provides a signed statement that certifies the amount of material extracted is less than 2500 cubic yards.

When can I begin work?

You must send the Notice of Intent to Comply through certified mail/return receipt requested. After you receive the postal receipt, you may begin the work.

How long is the permit valid?

The permit is valid for the life of the operation provided that you comply with the performance standards

If I qualify under the program, do I need other permits?

Perhaps. This procedure does not take the place of any other local, state, or federal approvals you may need. In specific cases, activities may require a Natural Resource Protection Act permit, a permit from the U.S. Army Corps of Engineers, or a permit from your local town. Call the DEP (207)287-3901, the Corps (207)623-8367 or your town if there are any questions.

How does the new procedure affect an existing licensed mining activity?

A transition provision is provided that allows a person in possession of a valid Site Location of Development Permit for mining activities to file a Notice of Intent to Comply. The permit issued under the Site Law lapses as of the date the notice is filed. All terms and conditions pursuant to the Site Law permit are incorporated into the notice.

What happens if I sell my property?

If the ownership of a licensed excavation under this program changes, the new owner or operator must re-file a Notice of Intent to Comply. A two-week grace period is provided to register the change of ownership.

Are there any provisions for obtaining a variance from the performance standards?

Yes. You can request a variance for: (1) excavating between 2 feet and 5 feet of the seasonal high water table; (2) an area greater than 10 acres for the working pit; (3) externally drained pits; (4) reclaimed side slopes steeper than 2.5H to 1V; (5) excavating closer than 100 feet to a public road; (6) excavating below the water table; or (7) reduced setbacks to a public water supply.

A fee of $250 for each variance request, except for excavating below the water table ($500 fee) and externally drained pits ($500 fee) is required at the time the request is filed. The applicant must submit specific information in support of each request showing that the variance will not adversely affect the environment and the health, safety and general welfare of the public. The variance process includes requirements for a public information meeting, a public notice and an appeal process.

Is there a procedure for expanding a borrow pit?

Yes. Prior to expanding a pit beyond an area that exceeds 10 acres of reclaimed and unreclaimed land and for each additional 10-acre expansion , you must file a "Notice of Intent to Expand" and you must request an inspection from the DEP. A fee of $250 is required upon filing. Excavation activities may continue after filing a Notice of Intent to Expand. .

Does the law affect a municipality's authority to regulate borrow pits?

No, the law does not affect a town's home rule authority to adopt ordinances regulating borrow pits.

Can a municipality register for authority to administer the new program for excavations in lieu of the DEP?

Yes. if the town has an ordinance that meets or exceeds the statutory provisions of the law it may register to assume authority. The town must submit this ordinance to DEP for review. If the ordinance is accepted, the town becomes responsible for administering and enforcing the law, except in instances of variances. The DEP would continue to review and approve variance requests.

What if my excavation is less than 5 acres?

If your operation is less than 5 acres, you must check with your town regarding any applicable local ordinance. If you are excavating for clay, topsoil or silt and the operation is less than 5 acres you must comply with the following standards:

  1. Stabilization and control. Sediment may not leave the parcel or enter in a protected natural resource as defined in 38 M.R.S.A. Section 480-B. Properly installed erosion control measures must be in place before the excavation begins. Vegetative cover must be established on all affected land. Topsoil must be placed, seeded and mulched within seven days of final grading.
    • If grass is planted, 90% ground coverage must be achieved;
    • If trees/shrubs are planted, a 75% survival rate must be achieved.
  2. Phases. The excavation must be reclaimed in phases so that the working pit does not exceed two acres at any one time.

Where do I get additional information?

For more information, contact the Mining Coordinator at the Augusta Office, or a Land & Water Bureau staff member at one of the following DEP regional offices:

Augusta- State House Station #17, Augusta , ME 04333
(207) 287-3901

Bangor- 106 Hogan Road , Bangor , ME 04401
(207) 941-4570

Portland- 312 Canco Drive , Portland , ME 04103
(207) 822-6300

Presque Isle- 1235 Central Drive , Presque Isle , ME 04769
(207) 764-0477