SCARBOROUGH – A public hearing on an ordinance update restricting the presence of dogs on Scarborough beaches was delayed at the last minute last week when it was discovered the town did not advertise the meeting in a local daily newspaper.

Despite the lack of a hearing, comments from a federal official during an open comment section of the Sept. 4 meeting may turn the tables on town officials, who admit the perception of federal demands put the new leash law on the fast track.

The public hearing will now be held at the Sept. 18 Town Council meeting. A second reading and vote on the proposed changes, prompted by the July 15 killing of an endangered piping plover chick on Pine Point Beach, will be conducted at the same session.

Members of the advocacy group Dog Owners of Greater Scarborough said they learned of the postponement “about an hour” before Wednesday’s meeting. Several members of the group turned out anyway when it was learned that Mark McCollough, an endangered species biologist with the Maine Field Office of the U.S. Fish and Wildlife Service, would be on hand to address the council and take questions, as he is unable to return for the Sept. 18 session.

“I’ll take the weight on my shoulders,” said Town Clerk Tody Justice, prior to Wednesday’s meeting. “I did the notice up, but I cannot find the paper trail where I sent it out. I did not do it intentionally, believe me. I’ve been sick over it all day log.”

Former Town Councilor Suzanne Foley-Ferguson, a leading voice of the dog owners’ group, called the town office Tuesday afternoon to verify if public notice of the hearing was published seven days before the meeting, as required by state law and local charter. Unable to find evidence the notice was sent, Justice called the newspaper, receiving confirmation Wednesday morning that it was never received.

Foley-Ferguson said her group consulted with “three attorneys” in the week leading up to the Sept. 4 meeting. It was uncertain, she said following the meeting, whether the dog owners would petition a new ordinance to replace whatever the council might adopt Sept. 18, or simply petition to undo the vote. Both are options under Scarborough’s Town Charter requiring assent from 25 percent of the number who voted in the most recent gubernatorial election, or nearly 2,400 signatories.

Councilor Judy Roy has foreshadowed that the council may on Sept. 18 amend the new rules as proposed in the first reading on Aug. 21. According to Town Manager Tom Hall, the guidelines federal officials want Scarborough to adopt regarding dogs on the beach can be amended if it is proven that the town actually has an “overabundance of habitat” that the plovers simply aren’t using.

Meanwhile, McCollough could not say with any conviction that a leash law of any kind has been proven to help piping plover populations. That caused a decided murmur among dog owners during an atypical question-and-answer session allowed by Council Chairman Ron Ahlquist during the Sept. 4 meeting.

Another attention-grabber was McCollough’s revelation that a failure of the town to adopt restrictions on dogs could imperil a $3.5 million federally funded dredging project in the Scarborough River, as many local officials had supposed based on an Aug. 20 letter from McCollough’s office to the Army Corps of Engineers.

“Our concurrence is based on the assumption that the town of Scarborough will revise their animal control ordinance and beach management ordinance to require that dogs be kept on a leash during the piping plover season,” read the third paragraph of the 24-page letter.

Fish and Wildlife was called on to consult on the dredging project because 150,000 cubic yards of sand dug from the river bottom will be used to rebuild dunes on Western Beach, where they will become a new habitat for the plovers.

“I thought they were directly tied,” said Hall after Wednesday’s meeting, adding that he was only dissuaded of that notion hours before the council meeting, in a conversation between himself, McCollough and Ahlquist.

“Our letter in no way says that the [Army] Corps cannot do their harbor dredging and beach nourishment project,” reiterated McCollough during the meeting. “To our knowledge they should be moving forward with their plans for that.”

The real gist of the Aug. 20 letter, said McCollough, was to inform the Army Corps that if Scarborough has not updated its leash law by April 1, 2014, it would automatically trigger the re-opening of a consultation process between the corps and U.S. Fish and Wildlife.

“That would be an issue between us and them,” said McCollough. “What may occur would be for us to prepare a document called a biological opinion that would give them incidental take coverage.”

Essentially, the “take coverage” would prevent the Army Corps from being subject to fines should a plover be killed in Scarborough on Western or Ferry beaches after the dredge work is complete, should Scarborough not adopt an ordinance barring dogs from being off leash on the side it controls from April 1 to Aug. 31.

McCollough confirmed that the Fish and Wildlife requirement was issued in guideline form only, and does not promulgate rules that carry the force of law. He also noted that his agency, is concerned about all beaches in Scarborough and has been after the town to restrict dog use “for more than a decade,” but the Aug. 20 letter only ties the dredge work to rules of use of Ferry and Western beaches.

The Prouts Neck Association inked an agreement Aug. 15 to ban dogs completely from Western Beach, which it controls. The town has oversight of Ferry Beach only. However, Hall said he suspects an attempt by the Town Council to limit the proposed ordinance to Ferry Beach would be met with disfavor by the feds.

“Right or wrong, our animal control ordinance doesn’t differentiate between beaches,” said Hall. “Beaches are beaches. Maybe I’m naive, but I’ll be shocked if they were satisfied if we now said, we’ll do this for Ferry Beach only and not on others. After all, the taking occurred on Pine Point Beach.”

Hall also said that, despite McCollough’s assurances, he still fears repercussions if the Town Council does not put an end to the practice in town that allows dogs to run free on municipal beaches from sunrise until 9 a.m. during the summer. Dogs are banned from the beaches between 9 a.m. and 5 p.m. and can only be present in the evening when on a leash.

“I can tell you the Army Corps is having their legal councel review this,” said Hall. “No one has told me for certain, but I suspect that if there is any question in their minds as to dangling issues, or not knowing the consequences of their actions, my sense, and I am speculating here, is the Army Corps’ legal councel is likely to say the only way they’ll go forward is if the [Town] Council has taken definitive action that complies with the guidelines.”

Although the Army Corps is required by Congress to maintain the shipping channel, where lobster boats reportedly scrape bottom now due to the build-up of sand since the last dredge a decade ago, Hall says he fears the project might not happen if delayed past its scheduled start in November.

“I’ve been around long enough to know it’s hard enough to get the federal dollars,” he said. “If you’ve got them and you turn them back, or you have something like this happen, it’s very difficult to keep them.”

Officials from Fish and Wildlife’s enforcement division have refused to confirm that the agency is investigating the town for possible violations of the Endangered Species Act, based on the presumption that the July 15 killing happened because local ordinances are not strong enough.

McCollough declined to comment on the investigation, but did confirm one is being conducted.

With just 44 nesting pairs in Maine, the piping plover is listed as an endangered species by the state. On the federal level, it holds the status of a “threatened” species.

A civil violation of the act can draw fines of up to $25,000. If the town is held criminally negligent, that could mean additional fines of up to $50,000.

Hall says he asked Councilor Richard Sullivan, as chairman of the ordinance committee, to introduce a stronger leash law, the day after Fish & Wildlife investigators appeared in his office to request documents needed to aid their inquiry.

“The strategy of taking this up so swiftly, before we’re directed to, let’s be honest, has everything to do with showing the federal government that we get it and, in doing so, prevent them taking any punitive action against us,” said Hall. “I don’t have any assurance that’s going to happen but I’d like our case to say, listen, as soon as this happened we dropped everything, cleared our agenda and the council took this up.

“It is remarkable how quickly this matter has moved though the process, much to the chagrin of a lot of the residents, I’m sure,” said Hall, even with a two-week delay based on the public notice kerfuffle.

During Wednesday’s meeting, McCollough said no piping plover has been observed nesting on Ferry Beach since 1981, and gave bird counts, nesting dates and protected bird types that seemed, to some, in conflict with data given at previous meetings by officials from Maine Audubon.

That drew a stern rebuke from some councilors, including Kate St. Clair, who up until the Sept. 4 meeting had been one of the most vocal advocates for adopting more stringent rules for dogs.

“I’m frustrated,” she said. “It seems like every time we turn around we’re, like, including another bird, or we’re extending it to this [date]. I want a straight, direct guideline for exactly what birds we need to be helping.”

Suzanne Foley-Ferguson, a leading voice in the group Dog Owners of Greater Scarborough, questions Mark McCollough, an endangered species biologist with the Maine Field Office of the U.S. Fish and Wildlife Service, about his agency’s desire for a stronger leash law on local beaches, during the Sept. 4 Scarborough Town Council meeting.

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