Brian M. Cullen, April 28, 2022
Auburn’s Phosphorus Control Ordinance applies to a Variety of Construction and Land Use Activities within the Taylor Pond Watershed
The City of Auburn’s comprehensive Code of Ordinances contains a section titled Environmental Performance Standards. See Chapter 60, Article XIII. Within that section are provisions relating to Phosphorus Control measures required to be followed in connection with various construction and land use type activities occurring within the Lake Auburn and Taylor Pond watersheds. See Division 2. The ordinance and its measures are intended to mitigate the introduction of additional phosphorus into Taylor Pond and Lake Auburn.
Phosphorus is a common, naturally occurring element which acts as a nutrient. When introduced into a pond or lake, phosphorus promotes algal growth and if unchecked, can proliferate into the phenomenon known as algae bloom. As many people are aware, algae blooms are harmful to lake health, difficult and expensive to remediate, diminish lake clarity and deplete lake oxygen. This can lead to murky, odorous water and cause fish kills. The resulting degradation of the water quality also typically diminishes the value of surrounding lakeshore property.
Many Taylor Pond property owners may not be familiar with Auburn’s specific phosphorus control requirements. The requirements apply only to the Taylor Pond and Lake Auburn watersheds and are in addition to the City’s building code and zoning ordinances provisions, which apply to construction and land use activity throughout the city. For example, although the construction and maintenance of septic systems may present phosphorous related issues, the City’s requirements pertaining to septic systems are separate and distinct from the Phosphorous Control Ordinance. Indeed, ongoing efforts to amend the City’s septic regulations applicable to the Lake Auburn watershed, may further compound property owner confusion.
Refocusing on the Phosphorus Control Ordinance is particularly timely in light of a recent amendment which makes it applicable to even more projects. Previously the ordinance applied to new buildings of 575 ft.² or more. As amended, the ordinance now applies to the construction of new buildings or structures with more than 250 ft.² of ground floor area. The revised standard could apply to many large sheds, garages and building additions. The ordinance also applies to building expansions of more than 30%.
In addition, the ordinance extends to the following land use type activities: earthmoving or brush and tree cutting affecting 10,000 ft.² or more and road, driveway or parking area construction/ re-construction of 1500 ft.² or more.
Pursuant to the express terms of the ordinance, projects meeting the above criteria require a phosphorus control permit. As currently administered by the City’s planning department however, there is no separate permit; consideration of phosphorus control issues is subsumed within the same review process as issuance of a building permit. This may contribute to the relative obscurity of the phosphorus control ordinance.
In any event, when the City’s planning department determines that an application for a building permit implicates the phosphorus control ordinance, it will require the applicant to submit a phosphorus control plan. The plan needs to be prepared by an environmental engineer and must meet the standards contained in the Maine Stormwater Management Design Manual, Phosphorus Control Manual Volume II, March 2016. Upon review and approval by the City’s planning department, compliance with the phosphorus control plan will be one of the terms of the resulting building permit