CHAPTER Env-Wt 400  DELINEATION AND CLASSIFICATION OF JURISDICTIONAL AREAS; CLASSIFICATION OF PROJECTS

 

REVISION NOTE #1:

 

          Pursuant to a rules reorganization plan approved by the Director of the Office of Legislative Services on September 7, 2005, Department rules in Wt 400 filed under Document #8341, effective 4-25-05, were editorially renumbered subsequently with subtitle Env-Wt denoting the wetlands program area.  The title Wt has been discontinued.

 

REVISION NOTE #2:

 

          Document #12804, effective 12-15-19, adopted or readopted with amendment all of the rules in Chapter Env-Wt 400, and changed the chapter heading from “Shoreline Structures” to “Delineation and Classification of Jurisdictional Areas; Classification of Projects.”

 

          Document #12804 reserved the Part numbers Env-Wt 401 through Env-Wt 404 and adopted Env-Wt 405.  Env-Wt 406 includes provisions that were formerly in Env-Wt 301.0l(a)-(f), (h), and (i), which had expired, and Env-Wt 301.02.  Env-Wt 407 and Env-Wt 408 include what was covered by the former Env-Wt 303.02 through Env-Wt 303.04, although some of the details were moved to Env-Wt 500 by Document #12805, effective 12-15-19.

 

          Document #12804 replaces all prior filings for rules in the former Chapters Wt 400 and Env-Wt 400.

 

          The prior filings for former Chapter Wt 400 up through Document #8341, effective 4-25-05, included the following documents:

 

          #2271, eff 1-10-83

          #2924, eff 12-11-84

          #3075, eff 7-26-85

          #4038, eff 4-10-86

          #4672, eff 9-14-89

          #5028, eff 12-20-90

          #5740, eff 11-23-93

          #6219, eff 4-4-96

          #6404, INTERIM, eff 12-21-96, EXPIRED 4-20-97

          #6429, eff 1-18-97, INTERIM

          #6498-B, eff 4-23-97

          #7072, eff 8-13-99

          #7158, eff 12-17-99

          #7303, eff 6-8-00

          #7988, eff 11-21-03

          #8067, eff 4-2-04

          #8341, eff 4-25-05

 

          The prior fillings for former Chapter Env-Wt 400 after Document #8341 was effective 4-25-05 included the following documents:

 

          #9095, eff 2-23-08

          #10367, eff 6-26-13

 

PART Env-Wt 401  RESERVED

 

PART Env-Wt 402  RESERVED

 

PART Env-Wt 403  RESERVED

 

PART Env-Wt 404  RESERVED

 

PART Env-Wt 405  PURPOSE; APPLICABILITY; ABBREVIATIONS AND ACRONYMS

 

        Env-Wt 405.01  Purpose.  The purpose of this part is to establish:

 

        (a)  The criteria for delineating and classifying jurisdictional areas; and

 

        (b)  The criteria for classifying the various kinds of projects that impact jurisdictional areas.

 

Source.  (See Revision Notes #1, #2, and #3 at chapter heading for Env-Wt 400) #12804, eff 12-15-19

 

        Env-Wt 405.02  Applicability.  This part shall apply to all dredging, filling, or construction activities, or any combination thereof, undertaken or proposed to be undertaken in any jurisdictional area.

 

Source.  (See Revision Notes #1, #2, and #3 at chapter heading for Env-Wt 400) #12804, eff 12-15-19

 

        Env-Wt 405.03  Abbreviations and Acronyms.  Abbreviations and acronyms used throughout this chapter shall have the meaning assigned in Env-Wt 100, as summarized in Appendix E.

 

Source.  (See Revision Notes #1, #2, and #3 at chapter heading for Env-Wt 400) #12804, eff 12-15-19

 

PART Env-Wt 406  DELINEATION AND CLASSIFICATION OF JURISDICTIONAL AREAS

 

        Env-Wt 406.01  References for Delineation of Wetlands Boundaries.

 

        (a)  Subject to (b) through (d), below, the individual performing the wetlands delineation on behalf of the applicant shall base the delineation on the presence of hydrophytic vegetation, hydric soils, and wetlands hydrology in accordance with the federal delineation method, available as noted in Appendix B.

 

        (b) The hydrophytic vegetation component of the delineation shall be done in accordance with the Northcentral and Northeast 2016 Regional Wetland Plant List, Version 3.3, 2016, published by the US ACE and available as noted in Appendix B.

 

        (c)  The hydric soils component of delineations shall be determined in accordance with the New England Hydric Soils Technical Committee’s “Field Indicators for Identifying Hydric Soils in New England”, Version 4, 2017, published by the New England Interstate Water Pollution Control Commission and available as noted in Appendix B.

 

        (d)  Delineations of vernal pools shall be based on the characteristics listed in the definition of “vernal pool” in Env-Wt 104.  To assist in the delineation, individuals may use either of the following references:

 

(1)  Identififying and Documenting Vernal Pools in New Hampshire”, 3rd Ed., 2016, published by NHF&G and available as noted in Appendix B; or

 

(2)  The US ACE “Vernal Pool Assessment” draft guidance dated 9-10-2013 sand form dated 9-6-2016, Appendix L of the USACE New England District Compensatory Mitigation Guidance, available as noted in Appendix B.

 

Source.  (See Revision Notes #1, #2, and #3 at chapter heading for Env-Wt 400) #12804, eff 12-15-19; amd by #12954, eff 12-24-19

 

        Env-Wt 406.02  Delineation of Wetlands Boundaries.

 

        (a)  For projects for which a wetlands delineation is required, wetlands boundaries shall be delineated by a certified wetland scientist except in the circumstances listed in RSA 310-A:79, reprinted in Appendix D.

 

        (b)  Wetlands delineations shall remain valid for 5 years, unless:

 

(1)  There is a reasonable basis to believe the original delineation might be incorrect according to the reference(s) cited in Env-Wt 406.01, as applicable;

 

(2)  The property or adjacent property has been disturbed in such a way as to increase or decrease stormwater or surface water run-off or groundwater flow to any portion of the property for which the delineation was done;

 

(3)  Any other information becomes available that warrants a review of the delineation; or

 

(4)  If vernal pools might be present:

 

a.  The delineation of the vernal pool(s) was not done to coincide with the use of vernal pools by primary indicator species; or

 

b.  One or more primary indicator species were not representative of the species’ normal biological cycle.

 

        (c)  If a wetlands delineation is more than 5 years old or if any of the criteria listed in (b), above, are met, the delineation shall be:

 

(1)  Verified through field observations and documentation to be the same as the original delineation; or

 

(2)  Replaced with a new delineation, if the original delineation cannot be verified.

 

        (d)  If delineation of vernal pools is done under the conditions identified in (b)(4), above, the applicant shall provide such additional information and documents, including photographs, as are necessary to clarify vernal pool boundaries.

 

Source.  (See Revision Notes #1, #2, and #3 at chapter heading for Env-Wt 400) #12804, eff 12-15-19

 

        Env-Wt 406.03  Wetlands Delineation Not Required for Certain Projects.

 

        (a)  Delineation of wetlands, including vernal pools, shall not be required for the following projects:

 

(1)  Any project that qualifies for a statutory permit-by-notification (SPN);

 

(2)  Minimum impact exotic aquatic weed control or minimum impact native aquatic vegetation removal projects as provided in Env-Wt 510;

 

(3)  Agriculture projects impacting less than 3 acres of wet meadow, provided the application and plan are prepared by the NRCS or a certified wetland scientist; and

 

(5)  Shoreline structure projects at the shoreline of or extending over open water, or both, where there are no vegetated wetlands unless the exemption in (2), above, applies.

 

        (b)  Delineation of wetlands, including vernal pools, shall not be required outside the limits of wetland impact if:

 

(1)  No work is done prior to a complete and accurate application being submitted for the activity; and

 

(2)  The activity covered by the application is:

 

a.  Timber harvesting undertaken in compliance with RSA 227-J or trail construction or maintenance pursuant to Env-Wt 517 where:

 

1.  No development or other change in land use will occur;

 

2.  The project qualifies as a minimum impact project under the criteria in Env-Wt 407 and Env-Wt 408; and

 

3.  The application includes the location(s) and type(s) of wetlands crossed on a USGS map and on an NRCS soils drainage class map, and demonstrates that the wetland dimensions and project impacts meet the minimum impact thresholds; 

 

b.  Agriculture that falls outside of the parameters of (a)(3), above, only because:

 

1.  The area of impact exceeds 3 acres;

 

2.  Alteration will occur to other than wet meadows only; or

 

3.  A combination of a. and b.; or

 

c.  A minimum impact utility maintenance project in accordance with Env-Wt 521 where:

 

1.  No new permanent access roads will be established;

 

2.  No permanent crossings of streams or wetlands will be installed;

 

3.  Maintenance will be through existing utility corridors;

 

4.  Work will be temporary or maintenance; and

 

5.  The application includes the location(s) and types(s) of wetlands crossed on the most recent  National Wetland Inventory map, USGS map, or an annotated aerial photograph in accordance with the Utility BMPs, available as noted in Appendix B.

 

Source.  (See Revision Notes #1, #2, and #3 at chapter heading for Env-Wt 400) #12804, eff 12-15-19; amd by #12956, EMERGENCY RULE, eff 12-23-19, EXPIRES: 6-20-20; amd by #13046, eff 6-2-20; amd by #13124, eff 10-23-20

 

        Env-Wt 406.04  Delineation of Water Courses.  Water courses shall be delineated as follows:

 

        (a)  For perennial streams, by identifying on each side:

 

(1)  The limit of the bank; and

 

(2)  The ordinary high water mark on the bank; and

 

        (b)  For intermittent streams, by the ordinary high water mark.

 

Source.  (See Revision Notes #1, #2, and #3 at chapter heading for Env-Wt 400) #12804, eff 12-15-19

 

        Env-Wt 406.05  Identification of Other Jurisdictional Areas.  Jurisdictional areas not subject to delineation as described in Env-Wt 406.01, Env-Wt 406.02, or Env-Wt 406.04 shall be identified as described below, as applicable:

 

        (a)  Any features subject to Env-Wt 600 shall be delineated based on their definitions;

 

        (b)  Surface water bodies such as lakes and ponds shall be delineated to the limit of the bank and include the normal high water line; and

 

        (c)  For any project in a prime wetlands or a duly-established 100-foot buffer for which a delineation has been submitted to the department pursuant to Env-Wt 703, the delineation identified in Env-Wt 703.06 shall be used.

 

Source.  (See Revision Notes #1, #2, and #3 at chapter heading for Env-Wt 400) #12804, eff 12-15-19

 

        Env-Wt 406.06  Classification of Wetlands.

 

        (a) Each wetland shall be classified by the applicant in accordance with the federal classification method. 

 

        (b)  The wetland classification of each wetland shall be identified on plans submitted with an application for a standard permit.

 

        (c)  For major and minor projects with permanent impacts to any watercourse, each watercourse shall be classified in accordance with Applied River Morphology, 2nd edition, 1996, available as noted in Appendix B.

 

Source.  (See Revision Notes #1, #2, and #3 at chapter heading for Env-Wt 400) #12804, eff 12-15-19; amd by #12954, eff 12-24-19

 

PART Env-Wt 407  BASIS FOR CLASSIFICATION OF PROJECTS

 

        Env-Wt 407.01  Basis for Impact Classification.  Unless otherwise specified in this part or in Env-Wt 408, a project shall be classified as a minimum impact, minor impact, or major impact project based on:

 

        (a)  The type of jurisdictional area proposed to be impacted by the project;

 

        (b)  The size of the proposed impact on jurisdictional areas; or

 

        (c)  A combination of (a) and (b), above.

 

Source.  (See Revision Notes #1, #2, and #3 at chapter heading for Env-Wt 400) #12804, eff 12-15-19

 

        Env-Wt 407.02  Impact Classification Adjustments.

 

        (a)  A project that impacts a PRA and that does not qualify for a project-type exception (PTE) under Env-Wt 407.04 shall be classified as a major project regardless of the size of the impact.

 

        (b)  A project shall be classified as a minor or major project, as applicable based on the other qualifying criteria, regardless of the size of the impact if it does not qualify for a PTE under Env-Wt 407.04 and it impacts:

 

(1)  A perennial stream, unless otherwise classified in Env-Wt 900;

 

(2)  A marsh; or

 

(3)  A scrub-shrub wetland adjacent to a surface water that:

 

a.  Is not located in a gravel pit, highway right-of-way, utility right-of-way, or residential or commercial development; or

 

b.  Contains at least 50 LF, measured parallel to the shoreline, of obligate wetland shrub species.

 

        (c)  A project that is classified as a major project based solely on the documented occurrence of protected species or habitat and would otherwise qualify for an LSA, PBN, EXP, or as a minimum impact project shall be processed as an LSA, PBN, EXP, or standard minimum or minor impact project, as applicable based on the other qualifying criteria, only if the applicant provides written documentation committing to implementation of recommendations from NHB or NHF&G, or both, as applicable, regarding the protected species or habitat.

 

        (d)  A project that is classified as a major project based solely on the documented occurrence of protected species or habitat shall be processed as a minimum impact project where the project would otherwise qualify as an SPN, only if the person responsible for the SPN project obtains recommendations from NHB or NHF&G, or both, as applicable, regarding the protected species or habitat.

 

Source.  (See Revision Notes #1, #2, and #3 at chapter heading for Env-Wt 400) #12804, eff 12-15-19; amd by #13124, eff 10-23-20

 

        Env-Wt 407.03  Jurisdictional Area Size Thresholds; Measuring Watercourse Length.

 

        (a)  Subject to (b), below, projects shall be classified based on size as shown in Table 407-1, below:

 

Table 407-1: Classification Based on Size of Impact

Type of Jurisdictional Area

Minimum

Minor

Major

Other than watercourse

< 3,000 square feet (SF)

≥ 3,000 SF to < 10,000 SF

≥ 10,000 SF

Watercourse

< 50 linear feet (LF)

≥ 50 LF to < 200 LF

≥ 200 LF

 

        (b)  Projects shall not be classified based on Table 407-1 if the project:

 

(1)  Is subject to an adjustment under Env-Wt 407.02;

 

(2)  Qualifies for a PTE under Env-Wt 407.04; or

 

(3)  Qualifies for project-specific size criteria as identified in Env-Wt 407.04, Table 407-2.

 

        (c)  Unless otherwise specified for a particular purpose, watercourse length measurements shall be made as follows:

 

(1)  For intermittent watercourses, the distance shall be measured along the thread of the channel; and

 

(2)  For perennial watercourses, the total distance shall be calculated by summing the lengths of the disturbance to the channel and the banks.

 

Source.  (See Revision Notes #1, #2, and #3 at chapter heading for Env-Wt 400) #12804, eff 12-15-19; amd by #13124, eff 10-23-20

 

        Env-Wt 407.04  Project-Type Exceptions (PTEs).

 

        (a)  Classification based on size as established in Env-Wt 407.03 shall not apply to any project that meets the requirements for an SPN under Env-Wt 308 and the applicable provisions in Env-Wt 500, however such projects remain subject to Env-Wt 307 and all other qualifying criteria.

 

        (b)  Classification based on resource type impacted shall not apply to a restoration/enhancement project under Env-Wt 525 that:

 

(1)  Is funded in whole or in part with public funds, whether from a federal, state, or local agency;

 

(2)  Is conducted under the supervision of a New Hampshire state agency established to manage or protect natural resources, the university of New Hampshire, the US Environmental Protection Agency, the US ACE, NRCS, the National Oceanic and Atmospheric Administration (NOAA), the US Forest Service, or the US Fish and Wildlife Service; and

 

(3)  Is not done to restore any area that is subject to a removal or restoration order.

 

        (c)  Classification based on resource type impacted shall not apply to:

 

(1)  Maintenance, repair, and replacement in-kind of existing legal shoreline structures, whether tidal or non-tidal;

 

(2)  Repair, but not replacement or slip lining, of existing legal stream crossings; or

 

(3)  The projects listed in Table 407-2, below, which shall be classified as specified in Table 407-2, below:

 

Table 407-2: Classification Criteria For Specified Projects

 

Type of Project

Classification Criteria Specified In

Aquatic vegetation control

Env-Wt 510

Water access structures

Env-Wt 511

Breakwaters

Env-Wt 512

Docking structures and accessory docking structures

Env-Wt 513

Bank stabilization

Env-Wt 514

Dug-in basins/boat houses

Env-Wt 515

Trails, paths, and boardwalks

Env-Wt 517

Ponds

Env-Wt 519

Forestry

Env-Wt 520

Utility projects

Env-Wt 521

Agriculture

Env-Wt 522

Non-tidal Dredging

Env Wt 523

Dams

Env-Wt 526

Tidal projects including tidal docks, tidal dredging, tidal bank stabilization, sand dunes, coastal lands, and beach maintenance projects

Env-Wt 600

Stream crossings

Env-Wt 900

 

Source.  (See Revision Notes #1, #2, and #3 at chapter heading for Env-Wt 400) #12804, eff 12-15-19; amd by #12954, eff 12-24-19

 

PART Env-Wt 408  PRIORITY RESOURCE AREAS; FILL IN PUBLIC WATERS; AGGREGATION

 

        Env-Wt 408.01  Projects In Priority Resource Areas (PRAs).  A project shall be classified as major impact if any part of the project impacts a priority resource area (PRA), which classification shall take precedence over any lower classification, unless the project:

 

        (a)  Is subject to a lower classification under Env-Wt 407.02; or

 

        (b)  Qualifies for a PTE under Env-Wt 407.04.

 

Source.  (See Revision Notes #1, #2, and #3 at chapter heading for Env-Wt 400) #12804, eff 12-15-19

 

        Env-Wt 408.02  Fill in Public Waters to Make Land.

 

        (a)  A project shall be classified as major impact if, as any part of the project, fill will be placed in public waters for the purpose of making land.

 

        (b)  Classification as a major impact project based on (a), above, shall:

 

(1)  Take precedence over any lower classification; and

 

(2)  Not be eligible for a waiver or downgrade of the classification.

 

Source.  (See Revision Notes #1, #2, and #3 at chapter heading for Env-Wt 400) #12804, eff 12-15-19

 

        Env-Wt 408.03  Aggregation of Projects: Consistent Scheme of Development.

 

        (a)  As authorized by RSA 482-A:11, V, a series of minor or minimum impact projects, or any combination thereof, undertaken by a single developer or several developers within the 5 years preceding the application for the current project shall constitute a major impact project if the projects, when taken in the aggregate, meet any of the criteria for a major impact project as identified in Env-Wt 407.02 or Env-Wt 407.03, and:

 

(1)  The subject properties are abutting;

 

(2)  The projects are a part of an overall scheme of development; or

 

(3)  The projects are otherwise consistent parts of an eventual whole.

 

        (b)  Classification as a major impact project based on (a), above, shall:

 

(1)  Take precedence over any lower classification; and

 

(2)  Not be eligible for a waiver or downgrade of the classification.

 

Source.  (See Revision Notes #1, #2, and #3 at chapter heading for Env-Wt 400) #12804, eff 12-15-19

 

        Env-Wt 408.04  Aggregation of Projects: Same Property.

 

        (a)  A project shall be classified as major impact if the totality of all impacts of all projects on the subject property within the 5 years preceding the application for the current project meets any of the criteria for a major project listed in Env-Wt 407.02 or Env-Wt 407.03.

 

        (b)  For purposes of (a), above, the following shall apply:

 

(1)  The subject property shall include any lots that have been subdivided from the property if the lots were part of the same property when one or more of the prior projects occurred; and

 

(2)  Previous work on the subject property shall include all dredging, filling, and construction activities on the property, regardless of whether the work was done pursuant to an exemption or any form of approval from the department, or was done illegally.

 

        (c)  Classification as a major impact project based on (a) or (b), above, shall:

 

(1)  Take precedence over any lower classification; and

 

(2)  Not be eligible for a waiver or downgrade of the classification.

 

Source.  (See Revision Notes #1, #2, and #3 at chapter heading for Env-Wt 400) #12804, eff 12-15-19

 


 

Appendix A:  State Statutes Implemented

Rule Section(s)

State Statute(s) Implemented

Federal Statutes, Regulations Implemented

Env-Wt 400

RSA 482-A:1 - 4, 6, 8 - 34

Clean Water Act, 33 U.S.C. Chapter 26, Subchapter IV, § 1344 (Permits for Dredged or Fill Material); 33 CFR Parts 322 & 323; USACE Gen. Permit No. NAE-2016-02415

 

 

Appendix B:  Incorporated References

 

Rule

Title (Date)

Obtain From:

 

 

U.S. Army Corps of Engineers

New England District

696 Virginia Road

Concord, MA 01742-2751

(978)318-8338

 

Env-Wt 406.01(a)

Wetlands Delineation Manual, Technical Report Y-87-1 (January 1987)

 

 

Regional Supplement to the Wetlands Delineation Manual: Northcentral and Northeast Region, Version 2.0 (January 2012)

Available to download at no cost from:

New England District > Missions > Regulatory > Jurisdiction and Wetlands > Wetland Delineation Manual (army.mil)

 

Available to download at no cost from:

ERDC/EL TR-12-1 "Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Northcentral and Northeast Region: (Version 2.0)" (army.mil)

Env-Wt 406.01(b)

Northcentral and Northeast 2016 Regional Wetland Plant List, Version 3.3 (2016)

Available to download at no cost from:

http://wetland-plants.usace.army.mil/nwpl_static/data/DOC/lists_2016/Regions/pdf/reg_NCNE_2016v1.pdf

Env-Wt 406.01(c)

Field Indicators for Identifying Hydric Soils in New England, Version 4 (2017)

New England Interstate Water Pollution Control Commission

Wannalancit Mills

650 Suffolk Street, Suite 410

Lowell, MA 01854

Phone: (978) 323-7929

Fax: (978) 323-7919

General Email: mail@neiwpcc.org

 

Available to download at no cost from:

Indicator A1: Histosol (neiwpcc.org)

 

Env-Wt 406.01(d)(1)

Identification and Documentation of Vernal Pools in New Hampshire, 3rd Ed. (2016)

NH Fish and Game Department

11 Hazen Drive

Concord, NH 03301

Phone: (603) 271-3421

HQ Fax: (603) 271-5829

 

Available to download at no cost from:

http://www.wildlife.state.nh.us/nongame/documents/vernal-pool-manual.pdf

Env-Wt 406.01(d)(2)

“Vernal Pool Assessment” draft guidance dated 9-10-2013 and form dated 9-6-2016, Appendix L of the USACE New England District Compensatory Mitigation Guidance

U.S Army Corps of Engineers

New England District

696 Virginia Road

Concord, MA 01742-2751

(978)318-8338

 

Available to download at no cost from:

http://www.nae.usace.army.mil/Portals/74/docs/regulatory/StateGeneralPermits/NEGP/VPAssessmentDRAFT.pdf

 

http://www.nae.usace.army.mil/portals/74/docs/regulatory/Mitigation/2016_New_England_Compensatory-Mitigation_Guidance

 

Env-Wt 406.03(b)(2)c.5.

Utility BMPs:

Best Management Practices Manual – Utility Maintenance in and Adjacent to Wetlands and Waterbodies in New Hampshire (2019)

NH Department of Natural & Cultural Resources

Division of Forests and Lands
172 Pembroke Road
Concord, NH 03301
Tel: (603) 271-2214
Fax: (603) 271-6488

 

Available to download at no cost from:

new_final_utility_bmp_manual_3_8_19.pdf (nh.gov)

 

Env-Wt 406.06(c)

Applied River Morphology, 2nd edition (1996)

Wildland Hydrology

11210 N. County Road 19
Fort Collins, CO 80524

Phone: (970) 568-0002

Email:wildland@wildlandhydrology.com

 

Available new for $71.76 + $10.00 shipping from

https://wildlandhydrology.com/books/?id=32&course=Applied+River+Morphology

 

Available used or new from Amazon.com and other sellers from ~$63 (used) to ~$155 (new).

 

Appendix C: Exemptions from Requirement for Certified Wetland Scientist

 

RSA 310-A:79 Exemption. – This subdivision shall not be construed to prevent or to affect:

        I. The practice of soil science by a nonresident having no established place of business in this state when such practice does not exceed, in the aggregate, more than 30 working days in any calendar year, provided such person is legally qualified to practice in a state or country in which the requirements and qualifications for obtaining a certificate are not lower than those specified in this subdivision. Practice for any portion of a day shall be deemed to constitute practice for an entire day.

        II. The work of an employee or a subordinate of a person holding a certificate under this subdivision, or any employee of a person practicing lawfully under paragraph I, done under the direct supervision of a person holding a certificate under this subdivision or a person practicing lawfully under paragraph I.

        III. The practice of officers and employees of the government of the United States or of the state of New Hampshire while engaged within this state in the practice of the profession of soil science or wetland science for the government.

        IV. The determination of a hydric soil boundary or test pit evaluation to the extent permitted pursuant to RSA 485-A:35 for the purposes of septic system design or subdivision application pursuant to RSA 485-A or rules adopted under RSA 485-A. For this work, a municipality shall not require qualifications different from those established pursuant to RSA 485-A:35.

        V. A homeowner from preparing a plan to provide vehicular and utility access to the homeowner's primary residence within 50 feet from the edge of a traveled way; provided, that he or she complies with rules adopted by the department of environmental services and standards adopted by the board.

 

RSA 482:2

   II. (a)  “Dam” means any artificial barrier, including appurtenant works, which impounds or diverts water and which has a height of 6 feet or more, or is located at the outlet of a great pond. A roadway culvert shall not be considered a dam if its invert is at the natural bed of the water course, it has adequate discharge capacity, and it does not impound water under normal circumstances. Artificial barriers which create surface impoundments for liquid industrial or liquid commercial wastes, septage, or sewage, regardless of height or storage capacity, shall be considered dams.

        (b)  An artificial barrier at a storm water detention basin, which impounds 0.5 acre-foot or less of water during normal conditions, shall not be considered a dam unless its height is 10 feet or greater or its maximum storage is 6 acre-feet or greater.

 

RSA 482-A:2

          IV.  “Mean high tide” shall be determined according to the published tables and standards of the United States Coast and Geodetic Survey, adjusted to the locality from such tables.

          VII.  “Sand dune” shall mean a hill or ridge of sand piled up by the wind and commonly found on the seacoast.

 

RSA 482-A:3:

   I. 

    (d)  At the time the applicant files the application with the department, the applicant shall provide written notice of the proposed project to:

        (1)  All abutters, as defined in the rules of the department, unless exempted in such rules, which shall be provided by certified mail or other delivery method that provides proof of receipt. The applicant shall retain such receipts and provide copies to the department upon request. The department shall have no obligation to verify the identity of abutters or their receipt of notice. Any abutter who has actual notice of the filing of an application shall have no cause to challenge the application based on failure to receive written notice. Nothing in this subparagraph shall prevent the department from taking appropriate action in the event an applicant fails to provide the required notice or provides false information.

        (2)  The local river management advisory committee if the project is within a river corridor as defined in RSA 483:4, XVIII, or a river segment designated in RSA 483:15. Such notice shall be sent by certified mail or other delivery method that provides proof of receipt. The applicant shall retain such receipts and provide copies to the department upon request. The local river management advisory committee shall, under RSA 483:8-a, III(a)-(b), advise the commissioner and consider and comment on the permit application.

 

   XIV. (a)  In processing an application for permits under this chapter, except for a permit by notification, the department shall:

            (1)  Within 14 days of receipt by the department, issue a notice of administrative completeness or send notice to the applicant, at the address provided on the application, identifying any additional information required to make the application administratively complete and providing the applicant with the name and telephone number of the department employee to whom all correspondence shall be directed by the designated department employee regarding incompleteness of the application. Each receipt of additional information in response to any notice shall re-commence the 14-day period until the department issues a notice of administrative completeness. Any notice of incompleteness sent under this subparagraph shall specify that the applicant or authorized agent shall submit such information as soon as practicable and shall notify the applicant or authorized agent that if the requested information is not received within 60 days of the notice, the department shall deny the application.

            (2)  Within 75 days of the issuance of a notice of administrative completeness for projects where the applicant proposes under one acre of jurisdictional impact and 105 days for all other projects, request any additional information that the department is permitted by law to require to complete its evaluation of the application, together with any written technical comments the department deems necessary. Such request and technical comments may be sent by electronic means if the applicant or authorized agent has indicated an agreement to accept communications by electronic means, either by so indicating on the application or by a signed statement from the applicant or authorized agent that communicating by electronic means is acceptable. Any request for additional information under this subparagraph shall specify that the applicant submit such information as soon as practicable and shall notify the applicant that if the requested information is not received within 60 days of the request, the department shall deny the application. The department may grant an extension of this 60-day time period upon request of the applicant.

            (3)  Where the department requests additional information pursuant to subparagraph (a)(2), within 30 days of the department's receipt of a complete response to the department's information request:

                 (A)  Approve the application, in whole or in part, and issue a permit; or

                 (B)  Deny the application and issue written findings in support of the denial; or

                 (C) Schedule a public hearing in accordance with this chapter and rules adopted by the commissioner; or

                 (D)  Extend the time for rendering a decision on the application for good cause and with the written agreement of the applicant; or

            (4)  Where no request for additional information is made pursuant to subparagraph (a)(2), within 75 days from the issuance of the notice of administrative completeness for proposed projects under one acre of jurisdictional impact, or 105 days for all others:

                 (A)  Approve the application, in whole or in part, and issue a permit; or

                 (B)  Deny the application and issue written findings in support of the denial; or

                 (C) Schedule a public hearing in accordance with this chapter and rules adopted by the commissioner; or

                 (D)  Extend the time for rendering a decision on the application for good cause and with the written agreement of the applicant.

            (5)  Where the department has held a public hearing on an application filed under this chapter, within 60 days following the closure of the hearing record, approve the application in whole or in part, and issue a permit or deny the application and issue written findings in support of the denial.

 

   (e)  Any request for a significant amendment to a pending application or an existing permit which changes the footprint of the permitted fill or dredge area shall be deemed a new application subject to the provisions of RSA 482-A:3, I and the time limits prescribed by this paragraph. “Significant amendment” means an amendment which changes the proposed or previously approved acreage of the permitted fill or dredge area by 20 percent or more, relocates the proposed footprint of the permitted fill or dredge area, includes a prime wetland or surface waters of the state, includes a wetland of a different classification as classified by the department, or includes non-wetland areas requiring permits for filling and dredging. This meaning of “significant amendment” shall not apply to an application amendment that is in response to a request from the department.

 

RSA 483:4

          VIII.  Designated river” means that portion of a perennial river which has been specifically designated by the general court pursuant to RSA 483:15.

          XVIII.  “River corridor” means the river and the land area located within a distance of 1,320 feet of the normal high water mark or to the landward extent of the 100 year floodplain as designated by the Federal Emergency Management Agency, whichever distance is larger.

 

RSA 483-B:4

          XI-e.  “Ordinary high water mark” means the line on the shore, running parallel to the main stem of the river, established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the immediate bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas.  Where the ordinary high water mark is not easily discernable, the ordinary high water mark may be determined by the department of environmental services.

 

RSA 485-A:2

          XIV.  “Surface waters of the state” means perennial and seasonal streams, lakes, ponds, and tidal waters within the jurisdiction of the state, including all streams, lakes, or ponds bordering on the state, marshes, water courses, and other bodies of water, natural or artificial.

 

RSA 487:16

  II.  The term “exotic aquatic weeds” includes only those species of vascular aquatic plants which were not part of New Hampshire's native aquatic flora before 1950. Cabomba caroliniana and Myriophyllum heterophyllum are examples of exotic aquatic weeds.

 

RSA 672:6  Local Governing Body.   

“Local governing body” means, in addition to any other appropriate title:

          I.  Board of selectmen in a town;

          II.  City council or board of aldermen in a city;

          III.  Village district commissioners in a village district; or

          IV.  County commissioners in a county in which there are located unincorporated towns or unorganized places.

 

40 CFR §230.3  Definitions.

          (l)  The term practicable means available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.

 

Appendix D: Other Statutory Provisions

[none in this chapter]


 

 

Appendix E:  Summary of Abbreviations and Acronyms

 

Term

Meaning

Agriculture BMWPs

“Best Management Wetlands Practices for Agriculture” dated 2019, published by the NH Department of Agriculture, Markets, and Food

A/M BMPs

“Wetlands Best Management Practice Techniques For Avoidance and  Minimization” dated 2019, published by the New England Interstate Water Pollution Control Commission

CPESC specialist

Certified Professional Erosion and Sediment Control specialist - an individual certified by EnviroCert International, Inc.® as competent to develop and implement erosion and sediment control practices

CY

Cubic Yard

Federal classification method

Method established in “Classification of Wetlands and Deepwater Habitats of the United States”, adapted from Cowardin, Carter, Golet and LaRoe (1979), August 2013, FGDC- STD-004-2013

Federal delineation method

Method established in “Wetlands Delineation Manual”, Technical Report Y-87-1, Corps of Engineers, January 1987, and “Regional Supplement to the Corps of Engineers Wetlands Delineation Manual: Northcentral and Northeast Region”, Version 2.0, U.S. Army Corps of Engineers, January 2012

Forestry BMPs

“New Hampshire Best Management Practices for Erosion Control on Timber Harvesting Operations” dated 2016, published by the University of New Hampshire Cooperative Extension

HOTL

Highest Observable Tide Line

Invasive Plant BMPs

“Best Management Practices For the Control of Invasive and Noxious Plant Species” dated 2018, published by the NHDOT

Marina BMPs

“Best Management Practices For New Hampshire Marinas” dated 2001, published by the NHDES Pollution Prevention Program

LAC

Local [River] Advisory Committee

LiDAR

Light Detection and Ranging - A surveying method that measures distance to a target by illuminating the target with pulsed laser light and measuring the reflected pulses with a sensor, with the differences in laser return times and wavelengths then being used to make digital 3-D representations of the target.

LF

Linear Foot

NH Method

“Method for Inventorying and Evaluating Freshwater Wetlands in New Hampshire” dated 2013 and revised 2015 and 2016, available at https://nhmethod.org/

NHB

Natural Heritage Bureau of the NH DNCR

NH DNCR

NH Department of Natural and Cultural Resources

NHF&G

NH Fish and Game Department

NHDOT

NH Department of Transportation

NRCS

Natural Resources Conservation Service of the U.S. Department of Agriculture

PBN

Permit-by-Notification (created in the rules)

PRA

Priority Resource Area - a jurisdictional area that:

   (a)  Has documented occurrences of protected species or habitat;

   (b)  Is a bog;

   (c)  Is a floodplain wetlands contiguous to a tier 3 or higher watercourse;

   (d)  Is a designated prime wetland or a duly-established 100-foot buffer zone;

   (e)  Is a sand dune, tidal wetland, tidal water, or undeveloped tidal buffer zone; or

   (f)  Is any combination of (a) through (e), above.

Professional engineer

RSA 310-A:2, II. “Professional engineer” means a person who by reason of advanced knowledge of mathematics and the physical sciences, acquired by professional education and practical experience, is technically and legally qualified to practice engineering, and who is licensed by the board or otherwise authorized by this subdivision to engage in the practice of engineering.

Routine Roadway BMPs

 “Best Management Practices for Routine Roadway Maintenance Activities in New Hampshire” dated 2019, published by the NHDOT

SF

Square Foot

SPN

Statutory Permit-by-Notification (established in RSA 482-A)

Subject property

      (a)  For projects in surface water for which any kind of permit is required, the parcel(s) of land adjacent to and associated with the area in which the project will occur or has occurred; or

      (b)  For all other projects for which any kind of permit is required, the parcel(s) of land on which the project will occur or has occurred.

Trail BMPs

“New Hampshire Best Management Practices for Erosion Control During Trail Maintenance and Construction” dated 2017, published by the NH DNCR

US ACE

U.S. Army Corps of Engineers

USGS

United States Geological Survey

Utility BMPs

“Best Management Practices Manual, Utility Maintenance in and Adjacent to Wetlands and Waterbodies in New Hampshire” dated 2019, published by the NH DNCR

WAP

Wildlife Action Plan prepared and published by NHF&G

Water Quality BMPs

Recommended practices for minimizing or preventing the direct or indirect discharge of sediment or other pollutants into surface waters and wetlands, including those listed in Env-Wt 307 and the Agriculture BMPs, Forestry BMPs, Marina BMPs, Invasive Plant BMPs, Roadway Maintenance BMPs, Trail BMPs, and Utility BMPs, as applicable

WPPT

Wetlands Permit Planning Tool - a GIS tool that provides access to data for planning projects near or in jurisdictional areas, available at https://nhdeswppt.unh.edu/Html5Viewer/index.html?viewer=WPPT.gvh