with whom ALEXANDER, J., joins, dissenting.
[¶ 23] Because Kroeger’s application for a permit to build a pier on his property met all of the Natural Resources Protection Act standards, I must respectfully dissent.
[¶ 24] To qualify for a permit an applicant must meet all nine of the Act’s standards. 38 M.R.S.A. § 480-D (2001). Pursuant to 38 M.R.S.A. § 341-D(1-B) (2001), the Board of Environmental Protection promulgated rules implementing the Act. The rules require an applicant to avoid the activity if there are practicable alternatives that would be less damaging to the environment. 2 C.M.R. 06 096 310-4 § 5(A) (2002). Each applicant must provide an analysis of the alternatives available. Id. The regulations also require an applicant to minimize alteration and, in some cases, provide compensation. 2 C.M.R. 06 096 310-4 § 5(B), (C) (2002). Even if the project has no practicable alternative and the applicant has minimized the impact as much as possible, the regulations provide that there must be no unreasonable impact. 2 C.M.R. 06 096 310-5 § 5(D)(1) (2002).
[¶ 25] The Department determined that Kroeger failed to meet the Act’s “existing uses” standard, which requires an applicant to demonstrate that “[t]he activity will not unreasonably interfere with existing scenic, aesthetic, recreational or navigational uses,” 38 M.R.S.A. § 480-D(l) (2001), that he also failed to meet the “harm to habitat” standard, which requires an applicant to demonstrate that “[t]he activity will not unreasonably harm any significant wildlife habitat ... or other aquatic life,” 38 M.R.S.A. § 480-D(3) (2001),5 and that there was a practicable alternative to a pier on his property.
[¶ 26] The Court did not reach the harm to habitat standard and did not address the Department’s flawed reliance on cumulative prospective development. Instead, the Court concludes that the record adequately supports the Department’s finding that the proposed dock will interfere with existing scenic uses. It also concludes that the record does not compel a finding that there was no practicable alternative to the pier. Because the record does compel findings that the impact on the scenic uses of the wetlands would be virtually nonexistent, the impact on the wetland habitat would be minor, and there was no practicable alternative to a pier on Kroeger’s property, the Court compounds the Department’s error.
[¶ 27] The Court also finds that the Department’s determination that the color of the pier would sharply contrast with the shoreline was not arbitrary. Because both the Department and the Court misapply the scenic impact analysis from the outset, I do not address this issue.
[¶ 28] When the Superior Court acts as an intermediate appellate court, we directly review the decision of the administrative agency. Hannurn v. Bd. of Envtl. Prot., 2003 ME 123, ¶ 11, 832 A.2d 765, 768. We accord no deference to the Superior Court. *574Conservation Law Found., Inc. v. Dep’t of Envtl. Prot., 2003 ME 62, ¶ 22, 823 A.2d 551, 559. Thus, we directly review the Department’s order to determine whether its decision is supported by evidence in the record and whether it is affected by any abuse of discretion or error of law. Hannum, 2003 ME 123, ¶ 11, 832 A.2d at 769; see also Downeast Energy Corp. v. Fund Ins. Review Bd., 2000 ME 151, ¶ 13, 756 A.2d 948, 951.
A. The Impact on the Scenic Uses of the Wetland Would Be Virtually Non-Existent
[¶ 29] When determining whether a project would have an unreasonable impact on the wetland, the Department considers the “functions and values provided by the wetland.” 2 C.M.R. 06 096 310-5 § 5(D)(1)(b) (2002). The regulations define “[functions” to mean “[t]he roles wetlands serve which are of value to society or the environment including, but not limited to, ... scenic and aesthetic use.” 2 C.M.R. 06 096 310-3 § 3(J) (2002).
[¶ 30] The Department suggests that because the project site is visible primarily by boaters and hikers, the.wetland provides valuable scenic and aesthetic uses. Due to the regulatory language, however, the focus of the analysis must be on the scenic and aesthetic value “provided by the wetland. ” 2 C.M.R. 06 096 310-5 § 5(D) (emphasis added). The wetlands at issue are coastal wetlands.6 “ Coastal wetlands ” are defined by the NRPA as “ all tidal and subtidal lands .”7 38 M.R.S.A. § 480-B(2) (2001). Kroeger’s pier has no impact on subtidal lands. Even if it did, subtidal lands are not regarded as particularly scenic or aesthetic, except perhaps by scuba divers, because they are underwater all the time, and generally invisible to hikers and boaters. Tidal lands are visible, especially at low tide when they are fully exposed; most of the time, tidal lands are only partially visible,
[¶ 31] Even when visible, there is no evidence that the tidal lands in Somes Sound are any different from the tidal lands elsewhere on the Maine coastline. No evidence was presented that hikers and sailors attribute a higher scenic and aesthetic value to Mount Desert tidal lands than other tidal lands. In fact, the rock, seaweed, sand,, shells, and various critters that occupy the tidal lands, and may, on close inspection, offer some aesthetic value, are largely invisible to boaters in the Sound and hikers in Acadia.
' [IT 32] The Court notes that Somes Sound is “the only natural fjord on the *575east coast of the United States.” While that may be true, in the context of coastal wetlands, the only area relevant to the analysis is the tidal land itself, not the landscape. Because tidal lands offer little scenic and aesthetic value to boaters and hikers in the area, the pier’s impact on the scenic and aesthetic uses provided by the wetland would be virtually non-existent.
[¶ 33] The Department’s determination that the pier would unreasonably impact scenic uses stems from its misapplication of the statutory and regulatory requirements to scenery outside the scope of the Act. Accordingly, its decision not to grant Kroeger his permit is affected by error of law. Because the evidence in the record, properly applied, compels a finding that the pier would not unreasonably impact scenic uses, Kroeger meets the no unreasonable impact to scenic uses standard.
B. The Impact on the Wetland Habitat Would Be Minor
[¶ 34] The pier’s granite supports would cover only a small amount of wetland. Far from harming habitats, there is evidence in the record that the granite supports would actually increase the area on which life can grow. Granite blocks are excellent attachment sites for algae, barnacles, and mussels. Kroeger’s plan envisioned stacking the granite blocks so as to allow water to circulate between them. Organisms would find shelter from the waves and predators between the blocks. With the surfaces of the blocks exposed, the wetland’s surface area available for organisms to live and grow would increase.
[¶ 35] The Department of Marine Resources’ (DMR) letter to the Department, dated May 31, 2002, lends additional support to a finding of no unreasonable harm to habitat. In response to the Department’s request for project review, and after a visit to the property, the DMR stated that “[Kroeger’s proposed pier] should not cause significant adverse impacts to marine resources, or traditional fisheries.”
[¶ 36] Further, the impact of the pier would be so minor that the Department’s regulations do not require Kroeger to provide compensation for the loss of wetland. The regulations only require an applicant to compensate for a loss of wetland if the area affected exceeds 500 square feet. 2 C.M.R. 06 096 310-5 § 5(C) (2002). Since Kroeger’s pier would cover only 138 square feet of wetland, its impact is too minor to require compensation. The evidence, therefore, compels a finding that Kroeger’s proposed pier would not unreasonably harm wetland habitat.
C. The Practicable Alternative Analysis is Flawed
[¶ 37] In complying with the regulation’s avoidance standard, Kroeger had the burden of establishing that no practicable alternative existed. 2 C.M.R. 06 096 310-4 § 5(A). The regulations provide that practicable alternatives include:
(1) [utilizing, managing or expanding one or more other sites that would avoid the wetland impact; (2) [Reducing the size, scope, configuration or density of the project as proposed, thereby avoiding or reducing the wetland impact; (3) [developing alternative project designs, such as cluster development, that avoid or lessen the wetland impact; and (4) [demonstrating the need, whether public or private, for the proposed alteration.
2 C.M.R. 06 096 310-7 § 9(A) (2002).
[¶ 38] Kroeger persuasively argues that local marinas are not practicable alternatives to a pier on his property. Alternatives are practicable if they are “[available and feasible considering cost, existing technology and logistics based on the over*576all purpose of the project.” 2 C.M.R. 06 096 810-3 § 3(R) (2002). Kroeger’s application indicated that the overall purpose of the project was access to the water from his property in exercise of his right to wharf-out to navigable waters. See Great Cove Boat Club v. Bureau of Pub. Lands, 672 A.2d 91, 95 (Me.1996) (discussing the nature and scope of the riparian right to construct piers and wharf-out). Kroeger plainly wanted to recreate on the water around his property, not around the local marina. Kroeger also presented evidence in his application that, other than a pier, there was no practicable alternative for accessing the water from his property.8 He stated that a three-point hitch and dinghy were impractical because his rocky shoreline would tend to snag the ropes. He also stated that a temporary structure was impractical because it would not be able to withstand the remarkably strong tidal currents present in the Narrows.
[¶ 39] Further, it is plain from the record that shore launching is not a practicable alternative. A steep embankment separates his home from the shoreline, the base of which is protected from erosion by boulders. The very presence of the boulders indicates that the high watermark reaches the base of this embankment, making shore mooring impossible and launching impractical. To the extent that the Department’s order states that there are practicable alternatives to a pier for accessing the water from Kroeger’s property, it is contrary to the evidence in the record.9
[¶ 40] Moreover, stating that shore access is a practicable alternative necessarily assumes the applicant’s ability to drag or carry boats from some storage facility to the water at low tide. Such an assumption has no place in a practicable alternatives analysis. Plainly apparent from the Department’s order, brief, and argument is its consideration of the physical and economic circumstances of the individual applicant in determining the existence of a practicable alternative. Implicit in finding that a marina is a practicable alternative is a finding that Kroeger is either physically capable of loading and unloading boats from his car, or financially able to hire people to do so. If this kind of analysis is permissible, an elderly or disabled individual would receive a permit but an able-bodied thirty-year-old would not. This level of discretion is plainly an overreading of the regulations. The Legislature could not have intended that the Department undertake such an arbitrary analysis when it enacted the NRPA.
[¶ 41] Other examples further highlight the arbitrary nature of the Department’s reasoning. What if the marina was five, ten, or twenty miles away? How far is too *577far? What if Kroeger had been rejected for membership in the private marina? Would an unwelcomed applicant receive a permit?
[¶ 42] The regulations anticipate that piers may not have a practicable alternative. “[Projects for which no practicable alternative may exist are limited to those necessary for: ... (3) [w]ater dependent uses.” 2 C.M.R. 06 096 310-4 § 5(A)(3) (2002). A pier is a “water dependent use.” 2 C.M.R. 06 096 310-3 § 3(W) (2002). A fair reading of the regulations is that the authors understood that a pier may have no practicable alternative. Certainly, in Kroeger’s case, his pier did not have a practicable alternative. The Department’s finding of one cannot form a basis for its order denying Kroeger a permit for his pier.
D. Reliance on Cumulative Prospective Development was Flawed
[¶ 43] In Hannum, we held that unsupported speculation about future development of piers that could cause the proposed pier to have an unreasonable impact in the future, even if it would not have an unreasonable impact now, cannot properly support an agency’s decision. 2003 ME 123, ¶ 17, 832 A.2d at 770. But we also stated that the Department could deny an application if a proposed dock would add an incremental effect so as to create a cumulative impact. Id. ¶ 15, 832 A.2d at 769.
[¶ 44] In analyzing the cumulative impact of the pier, the Department referred to the “potential for visual clutter on this relatively undeveloped shoreline.” This statement presents two problems. First, since the regulations are only concerned with the cumulative impact on the wetland, the Department erroneously considered the impact on the scenery. Second, this kind of speculation is improper under Hannum.
[¶45] In fact, the evidence supports a finding that there is no cumulative impact. As the Department notes, the shoreline is relatively undeveloped. There are no piers within 2000 feet of Kroeger’s property. Since this is the first pier on this particular stretch of wetland, the pier’s incremental effect cannot create a cumulative impact. Thus, Kroeger’s pier causes no unreasonable impact.
. This section was amended by P.L.2001, ch. 618, § 3 (effective April 3, 2002).
. Limiting the focus of the analysis to coastal wetlands is consistent with the limited scope of the Act. Section 480-C prohibits the construction of a pier "on or over any protected natural resource.” 38 M.R.S.A. §§ 480-B(7), 480-C(l), (2)(D) (2001). The Act defines "[protected natural resource” as "coastal sand dune system, coastal wetlands, significant wildlife habitat, fragile mountain' areas, freshwater wetlands, great ponds or rivers, streams or brooks, as these terms are defined in this article.” 38 M.R.S.A. § 480-B(8) (2001) (emphasis added). Because coastal wetlands, as defined by the Act, are the only protected, natural resource at issue here, we must limit the scope of our analysis to the Act’s definition of that resource. .
. ' The definition of “[cjoastal wetlands” also includes the contiguous lowland area subject .to tidal action during maximum spring tide levels. 38 M.R.S.A. § 480-B(2) (2001). This area could conceivably include a beach or other land-form that would be visible almost year round. In this case, however, the evidence in the record suggests that normal high tide reaches the embankment on the property. Since the pier would extend out perpendicular from the embankment into the Sound, the pier would not impact any of the additional .land subject to tidal action during high spring tides.
. Kroeger primarily intended to use the pier for smaller boats, such as dinghies, kayaks, picnic boats, and other boats with a shallow draft. Tide permitting, Kroeger also expected to use the pier for boats with deeper drafts, such as his sloop, which is permanently moored at one of the local marinas.
. In its decision denying Kroeger his permit, the Department stated that the applicant had not demonstrated that the marina and shore launching together would not meet his needs. Although the Department, as the Court notes, requested additional information regarding the use of an existing public pier, á three-point hitch, or a temporary structure, it did not request information regarding shore launching. Given the location and the nature of the shoreline, as evidenced by the many pictures and descriptions in the record, Kroe-ger should be entitled to presume that he met his burden proving that shore launching was impractical when he allowed the Department to visit and inspect the site. Even public comments objecting to the pier and offering alternatives did not go so far as to suggest that shore launching was a practicable alternative.