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: Available to
download at no cost from: |
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: |
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 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 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 |