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Maine DEP's April 13, 2007 Denial of Samorock LLC's application to build a resort pier in a scenic lobster ground next to the Rockland Breakwater in Rockland Maine
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STATE OF MAINE
DEPARTMENT ORDER
SITE LOCATION OF DEVELOPMENT LAW
DENIAL
FINDINGS OF FACT AND ORDER
Pursuant to the provisions of 38 M.R.S.A. Sections 481 et seq., Sections 480-A et seq. and Section
401 of the Federal Water Pollution Control Act, the Department of Environmental Protection has
considered the application of SAMOROCK, LLC with the supportive data, agency review comments,
public comments, and other related materials on file and FINDS THE FOLLOWING FACTS:
1. PROJECT DESCRIPTION:
A. History of Project: In Department Order #L-14246-87-A-N, dated October 14, 1987, the
Department approved the development of a hotel resort, 111 attached single-family dwelling units,
time share units and an 18-hole golf course. Since 1987 there have been several modifications and
amendments to the original Department licensing decision.
B. Summary: The applicant proposes to construct a private 12-foot wide by 550-foot long, pile
supported pier with a seasonal 50-foot ramp and a 140-foot float in and adjacent to a coastal
wetland to provide shared recreational boating access for residents and guests of a new 45-unit
condominium development approved in Department Order #L-14246- 87-0-A. The total maximum length of
the pier, ramp and floats at high tide will be approximately 740 feet. The floats will be able to
accommodate three to four boats at a time for on-loading and off-loading of passengers. No boats
will be permanently berthed at the dock or float. The project site is located on Warrenton Street
in the City of Rockland.
C. Current Use of Site: The site of the proposed project is currently occupied by the Samoset
Resort, a hotel resort with residential condominiums, time share units, and an 18-hole golf
course. The general public is allowed to cross the applicant's property near the site of the
proposed pier to access the Rockland harbor breakwater. Access is obtained through Marie H. Reed
Park.
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WETLANDS AND WATERBODIES PROTECTION RULES:
The Natural Resources Protection Act (NRPA) defines coastal wetlands as "all tidal and subtidal
lands, including all areas below any identifiable debris line left by tidal action;
all areas with vegetation present that is tolerant of salt water and occurs primarily in a salt
water or estuarine habitat; and any swamp, marsh, bog, beach, flat or other contiguous lowland
which is subject to tidal action during the maximum spring tide level..." 38 M.R.S.A §§480-B(2).
The construction of the proposed pier, ramp and float would alter a portion of the coastal wetland
and it therefore would require a permit under the NRPA and the Wetlands and Waterbodies Protection
Rules, Chapter 310 (Wetland Protection Rules). The Wetland Protection Rules interpret and
elaborate on the criteria for obtaining a permit. The rules guide the Department in its
determination of whether a project's impacts on the various protected functions and values of the
wetland would be unreasonable.
Approximately 38 square feet of coastal wetland would be eliminated by this proposed project and approximately 9,600 square feet of the coastal wetland would be indirectly altered through shading to construct the proposed pier, ramp and float.
Coastal wetlands, such as the intertidal zone and the waters of Penobscot Bay, are wetlands of
special significance as defined in Chapter 310 (4), and thus receive extra protection under the
rules. For projects proposed to be located in wetlands of special significance, a practicable
alternative is deemed to exist unless the project is within one of the categories of potentially
acceptable projects listed in the rule. One such category is "water dependent uses". A dock by its
nature is a water dependent use and, therefore, the rules allow an applicant to submit evidence to
demonstrate that no practicable alternative exists.
A proposed project may be found to be unreasonable if it would cause a loss in wetland area,
functions and values and there is a practicable alternative to the project that would be less
damaging to the environment. An applicant must provide an analysis of alternatives in order to
demonstrate that a practicable alternative does not exist.
Wetland functions are defined in Chapter 310 (3) (J) as: "The roles wetlands serve which are of
value to society or the environment including, but not limited to, scenic and aesthetic use,...
fisheries, wetland plant habitat, aquatic habitat and wildlife habitat."
The Department's Wetlands and Water bodies Protection Rules, Chapter 310, require that the
applicant meet the following standards:
A. AVOIDANCE: The department may find that projects impacts on the coastal wetland are
unreasonable if there is a practicable alternative to the project that would be less damaging to
the environment. Each application for a coastal wetland alteration permit must provide an analysis
of alternatives in order to demonstrate that a practicable alternative does not exist.
The applicant submitted an alternative analysis for the proposed project completed by Pinkham &
Greer Consulting Engineers, Inc., and dated December, 2005,
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with a last revision date of March 7, 2007. The Samoset Resort includes over 1 mile of shoreline
with the Town of Rockport and the City of Rockland. Most of the shoreline, however, is outside of
the protection of the Rockland breakwater. The applicant considered the following alternatives to
the proposed pier, ramp and float, and makes the following arguments that each is not practicable:
1) Placing a new pier, ramp and float adjacent to the Flume Cottage, which is on the section of
shoreline outside the breakwater. This site, however, is very exposed to the east and would not
provide a safe environment for both people and vessels of all sizes. Any location outside of the
protection of the breakwater would be undesirable for the same reason. The section of shoreline
within Rockland Harbor and inside the protection of the breakwater is the most desirable location
for a pier. The breakwater is intended to provide protection for people and vessels so it
naturally provides a safe location for the pier. The harbor contains various marine uses and the
shoreline is developed with docks, piers, and other commercial and residential structures. There
is also a mooring area defined by the City of Rockland off the end of the proposed pier.
2) The continued use of the Samoset's existing dock attached to the Rockland breakwater. This
small ramp and float could not accommodate the increased use and larger boats that would be
associated with the new 45-unit condominium development. The float is small and is connected to
land via the breakwater. The surface of the breakwater is extremely uneven and presents a
significant pedestrian hazard, especially at night. This pedestrian access is not viable for
residents and quests that have difficulty walking. In addition, there is no ability to operate a
small utility vehicle on the breakwater, which makes shuttling people and their gear difficult and
there is no place for dinghy storage on the breakwater. Dinghies would have to be stored on land
and without the ability to operate a small vehicle, these boats would have to be carried a
significant distance. Further, the breakwater was intended to protect marine structures, not
support them. Enlarging the small existing dock and ramp would directly impact the historic
structure.
3) Using the existing public and private facilities already present within the Rockland anchorage.
There are currently four other public and private marina facilities within Rockland Harbor. Two of
these facilities have slips and all four rent moorings. Based on inquires to several of the marina
operators, seasonal boat slips and mooring rentals are limited and are often fully rented by late
winter. These marinas also offer slip and mooring rentals on a transient basis, but this space is
also limited and is typically offered on a first come, first served basis. Dinghy storage and
parking are available, though similarly limited at these facilities. The existing facilities in
Rockland Harbor are currently operating near capacity. The additional use that the owners of the
Samoset condominiums would bring would likely overburden the existing marina facilities. In
addition, using these facilities would necessitate travel
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back and forth between the Samorock property and the marinas, adding traffic to local roads and
significantly impairing the purpose and value of Samorock's project.
According to the applicant the purpose of the proposed pier is to provide recreational boating
access to the ocean for the residents and guests of the new ' 45-unit condominium development
approved by the Department in Department Order #L-14246-87-0-A. While the applicant investigated
other pier locations within its property boundary and considered the use of existing public and
private facilities within Rockland Harbor; it failed to offer convincing evidence that the use of
these existing public and private facilities would present an undue burden on the condominium
owners.
Evidence in the record from the Rockland Harbormaster document that there is capacity within the
City of Rockland anchorage for more than 40 additional moorings some of which are located in the
vicinity of the existing ramp and float located on the breakwater and the proposed Samoset pier.
All additional moorings within the Rockland anchorage can be serviced off the existing public
facilities within Rockland Harbor. Additionally, the public facilities within Rockland Harbor are
accessible by visitors to the area on a temporary basis. These facilities are all located within
approximately 2 miles of the proposed pier location.
After reviewing the evidence in the record and viewing the project site, the Department finds that
there is at least one practicable alternative to the project that would be less damaging to the
environment. In particular, the applicant could use the existing marina facilities within Rockland
Harbor as well as their existing ramp and float located on the breakwater. The applicant could
provide a shuttle service to the marina facilities within Rockland Harbor and a harbor shuttle to
transport residents and guests of the Samoset Resort to and from their boats located on a mooring
within the established mooring area in Rockland Harbor. The shuttle service would eliminate the
concern regarding excess congestion on town infrastructure and the limited availability of dinghy
space at the existing facilities. While a permanent pier would be more convenient, it would not
eliminate the need for the applicant to use a mooring system for any use other than transient
service. Therefore the use of existing marina facilities with a shuttle service as described above
would represent a less damaging practical alternative to the proposed pier, ramp and float.
B. MINIMIZATION: The amount of coastal wetland to be altered must be kept to the minimum amount
necessary for meeting the overall purpose of the project. The pier design has gone through several
revisions. A proposal originally submitted to DEP in 2001 was for a marina with berthing for 40
yachts. The pier was to be supported by granite blocks and was to have numerous floats. This
proposal was subsequently withdrawn. The present design has been substantially modified from the
original. This proposal is for a pile supported pier with a temporary berthing capacity of only
three to four boats. The pier design was changed from a granite crib construction to the proposed
pile supported structure
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in order to reduce the amount of lost intertidal and sub-tidal habitat. The original design also
included the construction of a dock house at the edge of the shoreline. The dock house has been
moved to beyond 75 feet from the tidal area to further minimize impacts to the coastal wetland.
C. COMPENSATION: In accordance with Chapter 310 (5)(C), neither a functional assessment nor
compensation is required for coastal wetland alterations totaling less than 500 square feet of
direct impact. The Department did not require that the applicant perform a functional and value
assessment of the wetland and or provide compensation for the proposed impacts to the wetlands in
this application.
The Department finds that water access for boats does not have to be located on an individual
development site or property for it to be practicable. The construction and use of the proposed
pier at this location would result in a permanent loss of coastal wetland area and would have
additional adverse impacts on the functions and values of the wetland. As a result the State's
water bodies would be compromised. Given that the construction of the proposed pier, ramp and
float would result in a permanent loss of wetland area, as well as additional impacts to the
wetland; and that the applicant has access to the water through existing marina facilities within
close proximity to the development site, the Department finds that the applicant has not
adequately demonstrated avoidance of impacts to the coastal wetland.
In determining if the project would result in an unreasonable impact to the coastal wetland, the
Department must consider whether the impact is necessary. If there are alternatives, the
Department may weigh the impact and the availability of the alternative and find an unnecessary
impact to the coastal wetland to be unreasonable. In this case, the Department has found that the
applicant has a practicable alternative that would meet the project purpose and not result in new
construction in the coastal wetland.
3. WILDLIFE AND FISHERIES & HABITAT CONSIDERATIONS:
The Maine Department of Inland Fisheries & Wildlife (IF&W) reviewed the proposed project and
stated that the proposed location of the pier, ramp and float is within a mapped high and moderate
value waterfowl and wading bird habitat (CWWH 27673-High Value). High and moderate value waterfowl
and wading bird habitats are significant wildlife habitats as defined by the Chapter 315,
Significant Wildlife Habitat Rules. The habitat directly within the area of the proposed pier is
composed of aquatic bed, glacial erratics covered with rockweed, and mudflat and the point of
origin of the pier has been previously armored with rip rap.
An IF&W biologist visited the project site on June 27, 2006. IF&W commented that the applicant has
modified the original proposal by scaling down the size of the proposed pier. IF&W stated that the
construction of a pier, ramp and float system at this location will result in a loss of habitat
functions and values. However, IF&W views that loss of habitat functions and values as not having
an unreasonable impact to wildlife habitat.
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The Maine Department of Marine Resources (DMR) reviewed the proposed project. In its comments, DMR
stated that the inter-tidal area within the area of the proposed pier varies from sand/gravel to
mud partially covered with rockweed covered cobble. This area currently provides a typical habitat
type for juvenile and young lobsters. Lobsters are abundant in the area because of crevices in the
breakwater, kelp beds and eelgrass beds. The proposed pier location is within 200 feet of the
Rockland Harbor breakwater and approximately 15 lobster trap buoys were observed within the area
of the proposed project. DMR commented that some loss of habitat functions and values may occur
through displacement of the traditional lobster fishing area. However, DMR concluded that the
proposal for a pier at this location would not have an unreasonable adverse impact on marine
habitat.
The applicant modified the original design of the proposed pier by converting the structure from a
crib supported pier to a pile supported pier in order to minimize the amount of intertidal habitat
directly affected by the proposed project. However, the applicant has not met the burden of proof
to demonstrate that a less damaging alternative is not practicable (see Section 2 above). Although
the applicant argues that, to achieve the project purpose, access to the water must be on the
immediate grounds of the Samoset Resort, public and private marinas with extra capacity exist in
close proximity. The Department finds that water access does not have to be located on the
development premises for it to be practicable. Given that the construction of the proposed pier
would result in a loss of habitat functions and value; and that the applicant has boating access
to the water through its already existing structure and could have access through facilities
within the Rockland anchorage, the Department finds that the applicant has not adequately
demonstrated avoidance of impacts to marine wildlife and fisheries habitat.
In determining if the project would result in an unreasonable impact to habitat, the Department
must consider whether the impact is necessary. The Department may find an unnecessary impact to
habitat to be unreasonable. In this case, the Department finds that the applicant has a
practicable alternative that would meet the project purpose and not result in new construction in
or over habitat for marine and other aquatic life. Therefore, the impacts of this project on
aquatic life and habitat are unnecessary and unreasonable. The Department finds that the proposed
project would result in an unreasonable adverse impact to marine wildlife and fisheries habitat.
4. EXISTING SCENIC, AESTHETIC, RECREATIONAL OR NAVIGATIONAL USES:
Each applicant must demonstrate that its proposed project does not unreasonably interfere with
existing scenic, aesthetic, recreational and navigational uses of the coastal wetland. To guide
applicants and assist the Department in its analysis of potential impacts to scenic and aesthetic
uses, the Board of Environmental Protection has adopted Chapter 315, Assessing and Mitigating
Impacts to Scenic and Aesthetic Uses, which interprets and elaborates on this criterion of the
NRPA. In accordance with Chapter 315, the applicant submitted a description of the property and
the proposed project, a scenic and aesthetic visual impact report, and a copy of the Department's
Visual Evaluation Field Survey Checklist as Appendix A to the application. In its visual impact
report, the
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applicant depicted how the pier would be viewed from five different vistas: the Marie H. Reed
Memorial Park, the public beach/harbor (at the base of the proposed pier), the lighthouse at the
end of the breakwater, the harbor area (off Jameson Point), and outside of the breakwater coming
into the harbor. The visual impact report was last modified on March 1, 2007.
The proposed pier would be located in Rockland Harbor, which is a public natural resource visited
by the general public, in part, for the use, observation, enjoyment and appreciation of its
natural and cultural visual qualities. The site of the proposed pier and the surrounding area is
currently used for recreational access to the Rockland breakwater, general recreation, including
swimming, recreational boating, and commercial lobster fishing.
The Rockland harbor breakwater is a century old breakwater and a public and historical landmark
listed on the National Register of Historic Places. The current access to the breakwater is a
footpath that leads from the Marie H. Reed Memorial Park through the near shore area adjacent to
the beach. The area inside the breakwater is currently used as a safe place for boats and
schooners to moor during storms. In addition, the sub-tidal area directly adjacent to the
breakwater is utilized by lobster fisherman to set their traps.
The Maine Historic Preservation Commission reviewed the proposed project in accordance with § 106
of the National Historic Preservation Act, as amended. The Maine Historic Preservation Commission
stated that, based on the design of the pier, as indicated by plans dated 7/20/06, and further
described in the Pierce Atwood letter dated August 21, 2006 and accompanying visual simulations,
the proposed pier will have not effect the eligibility of the Rockland breakwater or any other
identified historic properties to appear on the National Register of Historic Places. MHPC stated
that their review policy does not allow for comment on any portion of the project other than its
affect on the eligibility criteria of the identified historic structures.
Residents of the Rockland area submitted comments stating that the breakwater is very important to
the State of Maine and the City of Rockland. In their comments, several area residents commented
that the construction of the proposed pier would unreasonably interfere with their enjoyment of
the scenic beauty of the Rockland breakwater, and such enjoyment by the many tourists and visitors
to this area. They argue that the breakwater has aesthetic and recreational value to the citizens
of Maine beyond the functions it was designed to serve one century ago. Information submitted by
the residents' document that the Rockland breakwater attracts thousands of visitors to the
Rockland area each year. The visitors view the Rockland harbor and the Rockland breakwater from
Marie H. Reed Park and the associated pathway from the park to the breakwater. The residents state
that the construction of a pier, ramp and float at this location would significantly obstruct the
view of Rockland Harbor and the Rockland breakwater and severely impact the enjoyment of this
valuable scenic resource. In addition, members of the boating public stated that their scenic and
aesthetic enjoyment of the coastal wetland would be adversely affected by the construction of the
proposed pier, ramp and float. The scenic and aesthetic enjoyment of the resource by people
walking on the breakwater would also be impacted although to a lesser degree. In addition, some
boaters stated that the
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proposed pier, ramp and float would result in a loss of a safe harbor area for large schooners to
moor temporarily during storms. In its review comments, the DMR also commented that the
displacement or loss of some mooring area would result through the construction of the proposed
pier.
Department staff visited the project site on February 2, 2007. After reviewing the applicant's
proposal and supporting evidence, agency comments and other comments received from the public, the
Department has determined that two of the scenic vistas examined will be significantly adversely
affected though construction of the proposed 740-foot pier, ramp and float. The scenic impact will
occur to views from the Marie H. Reed Memorial Park, which serves as the primary access point for
the public to the Rockland breakwater and the harbor/beach area at the base of the proposed pier.
The applicant has submitted a copy of a Quit Claim Deed, documenting that the City of Rockland
transferred ownership of Marie H. Reed Park to Samorock, LLC on September 10, 1973. Although the
beach area where the pier abutment would be anchored is owned by the applicant, the public has had
historical access and use of the near shore and intertidal areas since prior to 1973. Marie H.
Reed Park contains a lawn area with several benches and constitutes the sole land access point for
the general public to the Rockland breakwater. The applicant contends that Marie H. Reed Park is
not a scenic resource or public lands visited by the general public for the use, observation,
enjoyment, and appreciation of natural or cultural visual qualities, as described by Chapter 315
of the Department's rules. Under Chapter Rules, the Department considers a scenic resource as the
typical point from which an activity in, on, over, or adjacent to a protected natural resource is
viewed.
The list of scenic resources includes, but is not limited to, the Rockland Breakwater Light, the
Atlantic Ocean, and locations of national, State, or local scenic significance. A scenic resource
visited by a large number of people who come from across the country or state is generally
considered to have national or statewide significance. A scenic resource visited primarily by
people of local origin is generally of local significance. While the Department recognizes that
Marie H. Reed Park is now owned by the applicant, the general public has enjoyed unlimited access
to this area for many years. The park has historically been the primary land access point for the
general public to view Rockland Harbor and the Rockland breakwater. The Department finds that
Marie H. Reed Park is a scenic resource that has both national and local significance and, as a
result, is a scenic resource pursuant to Chapter 315 Rules.
It is the responsibility of the applicant to demonstrate that the proposed design does not
unreasonably interfere with existing scenic and aesthetic uses, and thereby diminish the public
enjoyment and appreciation of the qualities of a scenic resource, and that any impacts have been
minimized. The proposed pier, ramp and floats will become a significant structure visible from
swimmers, and boaters on the ocean near the shore between the breakwater and the proposed pier,
from Marie H. Reed Park and from the beach/harbor area at the base of the pier structure. The
Department's determination of impact is based on the following visual elements of the landscape:
landscape compatibility, scale contrast, and spatial dominance. In consideration of these criteria
the Department finds that the applicant has failed to demonstrate that the proposed pier, ramp and
float will not dominate the landscape from the public viewpoint at both Marie H.
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Reed Park and the beach/harbor area at the base of the proposed pier structure. For the users of
the coastal wetland, such as people walking along the intertidal area, and boaters, the pier would
be a significant visual intrusion, traversing the entire width of the intertidal area. While
persons walking the intertidal area would be able to pass beneath the dock, the dock would
dominate the landscape and partially obstruct and/or fragment the view along the intertidal area
towards the Rockland breakwater and across Rockland Harbor, significantly detracting from the
visual and aesthetic quality of the resource and thereby interfering with this use of the coastal
wetland. Additionally, the proposed pier, ramp and float will displace some traditional fishing
area resulting in an impact on this traditional use and navigation within this portion of Rockland
Harbor.
In determining whether the project would result in an unreasonable interference with scenic
aesthetic, recreational or navigational uses, the Department must consider whether the impact to
those uses is necessary. The Department may find an unnecessary impact to scenic aesthetic,
recreational or navigational uses to be unreasonable. In this case, the Department finds that the
applicant has a practicable alternative that would meet the project purpose and not result in new
construction that would adversely impact existing scenic, aesthetic, recreational or navigational
uses (see section 2 above). Therefore, the Department finds that the impacts of this project on
scenic, aesthetic, recreational and navigational uses are unreasonable.
5. SOIL EROSION:
Based on the proposed methods of construction as outlined in the application, the Department finds
that the activity will not cause unreasonable erosion of soil or sediment nor unreasonably inhibit
the natural transfer of soil from the terrestrial to the marine environment.
6. WATER QUALITY CONSIDERATIONS:
The applicant proposes to use lumber treated with chromated copper arsenate (CCA) to construct the
pier. To protect water quality, all CCA treated lumber must be cured on dry land in a manner that
exposes all surfaces to the air for 21 days prior to the start of construction. Provided the CCA
treated lumber is cured as described above, the Department finds that the proposed project will
not violate any state water quality law.
The Department does not anticipate that the proposed project will violate any state water quality
law, including those governing the classification of the State's waters.
7. OTHER CONSIDERATIONS:
The Department did not identify any other issues involving, the natural transfer of soil, natural
flow of water, water quality, or flooding.
BASED on the above findings of fact, and subject to the conditions listed below, the Department
makes the following conclusions pursuant to 38 M.R.S.A. Sections 480-A et seq. and Section 401 of
the Federal Water Pollution Control Act:
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A. The proposed activity would unreasonably interfere with existing scenic, aesthetic,
recreational, and navigational uses.
B. The proposed activity would not cause unreasonable erosion of soil or sediment.
C. The proposed activity would not unreasonably inhibit the natural transfer of soil from the
terrestrial to the marine or freshwater environment.
D. The proposed activity would unreasonably harm a significant wildlife habitat.
E. The proposed activity would not unreasonably harm a freshwater wetland plant habitat,
threatened or endangered plant habitat, aquatic or adjacent upland habitat, travel corridor,
freshwater, estuarine, or marine fisheries or other aquatic life.
F. The proposed activity would not unreasonably interfere with the natural flow of any
surface or subsurface waters.
G. The proposed activity would not violate any state water quality law including those
governing the classifications of the State's waters.
H. The proposed activity would not unreasonably cause or increase the flooding of the
alteration area or adjacent properties.
I. The proposed activity would not be on or adjacent to a sand dune.
THEREFORE, the Department DENIES the above noted application of Samorock LLC. to construct a pier,
ramp and float, and all applicable standards and regulations:
DONE AND DATED AT AUGUSTA, MAINE, THIS 13TH DAY OF APRIL, 2007
DEPARTMENT OF ENVIRONMENTAL PROTECTION
BY: DAVID P. LITTELL, COMMISSIONER
PLEASE NOTE THE ATTACHED SHEET FOR GUIDANCE ON APPEAL PROCEDURES
Date of initial receipt of application: 12/23/2005
Date filed with Board of Environmental Protection April 17, 2007
JC/ATS/L14246-87-R-M/L14246-4C-S-N
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