CHAPTER Env-Wt 700 PRIME
WETLANDS
Statutory Authority: RSA 482-A:11, I, IV; RSA 482-A:15, I-b
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
700 filed under Document #8341, effective 4-25-05, were editorially renumbered
subsequently with subtitle Env-Wt denoting the wetlands
program area. The title Wt was discontinued.
REVISION
NOTE #2:
Document #12807, effective 12-15-19,
readopted with amendment all of the rules in Chapter
Env-Wt 700 under the chapter heading “Prime
Wetlands”.
Document #12807 replaces all prior
filings for rules in the former Chapters Wt 700 and
Env-Wt 700.
The prior
filings for former Chapter Wt 700 up through Document
#8341, effective 4-25-05, included the following documents:
#1825, eff 10-5-81
#2512, eff 10-19-83
#2924, eff 12-11-84
#5028, eff 12-20-90
#5486, eff 10-14-92
#6404, INTERIM, eff 12-21-96, EXPIRED 4-20-97
#6498-B, eff 4-23-97
#8341, eff 4-25-05
The prior fillings for former Chapter
Env-Wt 700 after Document #8341 was
effective 4-25-05 included the following documents:
#10367, eff 6-26-13
PART Env-Wt 701 PURPOSE; DEFINITIONS; STATUTORY PARAMETERS; ABBREVIATIONS AND ACRONYMS
Env-Wt
701.01 Purpose. The purpose of this chapter is to establish the
criteria and methods to be used to designate, map, and document prime wetlands,
which are wetlands that are worthy of extra protection because their
uniqueness, fragility, and/or unspoiled character give them significant value.
Source. (See Revision Notes #1 and #2 at chapter
heading for Env-Wt 700) #12807, eff 12-15-19
Env-Wt
701.02 Definitions. For purposes
of this chapter, the following definitions shall apply:
(a)
“Duly-established 100-foot buffer” means the
buffer recognized in RSA 482-A:11, IV for prime wetlands designated on or after
September 11, 2009, but before August 17, 2012;
(b)
“Local authority” means the local body having authority to designate,
map, and document prime wetlands pursuant to RSA 482-A:15, I(a), reprinted in
Appendix D;
(c)
“Prime wetlands” means “prime wetlands” as defined in RSA 482-A:15, I-a,
reprinted in Appendix C;
(d)
“Prime wetlands/buffer” means prime wetlands or a duly-established
100-foot buffer or both, as applicable in the context used; and
(e)
“Significant net loss” means a loss that is unlikely to be reversed
through natural processes within one year.
Source. (See Revision Notes #1 and #2 at chapter
heading for Env-Wt 700) #12807, eff 12-15-19
Env-Wt
701.03 Applicable Statutory Parameters. The statutory parameters that apply to a prime wetlands designated pursuant to RSA 482-A:15 or its
predecessor statute shall be determined based on the date of the designation,
as summarized in Table 701-1, below:
Table 701-1: Prime Wetlands Parameters
Session Law |
Effective Date |
Statutory Parameters |
1979, 431:5-6 |
Aug. 22, 1979 |
• Municipalities
authorized to designate prime wetlands • NH Wetlands
Board must notify local authority prior to issuing a permit for a project “in
or adjacent to” designated prime wetlands • Board adopts
rules to implement, establish criteria (OLS document #1825, eff. 10-5-81; see
OLS Revision Notes for subsequent history) • No fixed buffers
for prime wetlands, but rules establish requirements that apply to proposed
work/activities that may impact prime wetlands, including no significant net
loss of wetland function • “Adjacent” not
defined |
2007, 211: 2 |
Aug. 24, 2007 |
•
“in or adjacent to” changed
to “in or within 100 feet of” |
2009, 185:2 |
Sept. 11, 2009 |
• Department must
notify local authority prior to issuing a permit for projects “in or within
100 feet of” a designated prime wetlands • Waivers
authorized for forest management work |
2012, 235:2 |
Aug. 17, 2012 |
•
Requirements established for a prime
wetlands to be at least 2 acres in size; to not consist of a water
body only; to have at least 4 primary wetland functions, one of which must be
wildlife habitat; and to be at least 50 feet wide at its narrowest point • Department must
notify local authority prior to issuing a permit for projects in a designated prime wetlands or within 100 feet of any prime
wetlands where a 100-foot buffer was required at the time of designation (i.e., on or after Sept. 11, 2009 but
before Aug. 17, 2012) |
Source. (See Revision Notes #1 and #2 at chapter
heading for Env-Wt 700) #12807, eff 12-15-19
Env-Wt
701.04 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 and #2 at chapter
heading for Env-Wt 700) #12807, eff 12-15-19
PART Env-Wt 702 CRITERIA AND PROCEDURES FOR DESIGNATION OF
PRIME WETLANDS
Env-Wt
702.01 Identification of Wetlands for
Consideration as Prime.
(a) A local authority undertaking a review of
wetlands within its boundaries to determine whether to designate any of them as
prime wetlands shall begin by identifying each wetland that meets the
requirements established in RSA 482-A:15, I-a, reprinted in Appendix D.
(b)
Wetlands shall be delineated using the methods specified in Env-Wt 406.01.
(c) The local authority shall then:
(1) Identify at least 4 primary wetlands
functions from those identified in RSA 482-A:2, XI, one of which shall be
wetland-dependent wildlife habitat as required by RSA 482-A:15, I-a; and
(2) Evaluate the wetlands identified and
delineated pursuant to (a) and (b), above, for each of the primary wetlands functions identified pursuant to (c)(1),
above, using:
a. For non-tidal wetlands, the “Method for
Inventorying and Evaluating Wetlands in New Hampshire” dated 2015, available as
noted in Appendix B;
b. For tidal wetlands, the “Method for the
Evaluation and Inventory of Vegetated Tidal Marshes in New Hampshire” dated
1993, available
as noted in Appendix B; or
c. An alternative method, in which case the
local authority shall identify the alternative method and explain the reasons
for using it.
(d)
A wetland that does not meet or exceed the statutory conditions shall
not be considered for designation as a prime wetlands, but disqualification
from being designated as prime wetlands shall not disqualify wetlands from any
other federal, state, or local protections that may be available, especially if
the wetlands support a rare species, provide critical wildlife habitat, or
provide critical wetland functions as identified in RSA 482-A:2, XI.
Source. (See Revision Notes #1 and #2 at chapter
heading for Env-Wt 700) #12807, eff 12-15-19
Env-Wt
702.02 Selection of Primary
Wetlands Functions for Evaluation. The primary wetlands functions used in the
evaluation of the identified wetlands shall include wetland-dependent wildlife
habitat and 3 or more of the following, as listed in RSA 482-A:2, XI:
(a)
Ecological integrity;
(b)
Fish and aquatic life habitat;
(c)
Scenic quality;
(d)
Educational potential;
(e)
Wetland-based recreation;
(f )
Flood storage;
(g)
Groundwater recharge;
(h)
Sediment trapping;
(i ) Nutrient trapping, retention, and transformation;
(j )
Shoreline anchoring; and
(k)
Noteworthiness.
Source. (See Revision Notes #1 and #2 at chapter
heading for Env-Wt 700) #12807, eff 12-15-19
Env-Wt
702.03 Designation
of Prime Wetlands.
The local authority shall comply with all applicable procedures,
including the notice requirements of RSA 482-A:15, I(a) and (b), in designating
prime wetlands.
Source. (See Revision Notes #1 and #2 at chapter
heading for Env-Wt 700) #12807, eff 12-15-19
PART
Env-Wt 703
SUBMISSION OF MAPS AND DOCUMENTATION
Env-Wt
703.01 Required Information. Any local authority authorized to file information
with the department pursuant to RSA 482-A:15, II, shall submit:
(a)
A map that meets the requirements of Env-Wt 703.02;
(b)
A written report that meets the requirements of Env-Wt
703.03; and
(c)
Documentation of the approval required by RSA 482-A:15, II.
Source. (See Revision Notes #1 and #2 at chapter
heading for Env-Wt 700) #12807, eff 12-15-19
Env-Wt
703.02 Map Requirements. Any local authority authorized to file
information with the department pursuant to RSA 482-A:15, II, shall comply with
the following:
(a)
The local authority shall:
(1)
Use the most accurate maps available, verifying the boundaries of
proposed prime wetlands with an on-site review where landowner permission is provided;
(2) Mark state plane coordinate reference points
based
on the State Plane Coordinate System 1983 on the map;
(3) Clearly identify and separately label each
prime
wetlands on the map; and
(4) Use blue or black ink
to
denote the boundaries of the prime wetlands;
(b)
Each map shall be on one or more sheets that:
(1)
Do not exceed 28 inches by 40 inches; and
(2)
Have a one-inch border and a title block with scale and legend;
(c)
The scale of the map shall be one inch equals
1,000 feet or a scale that provides greater detail; and
(d)
The map(s) shall show:
(1)
The exterior boundary of each delineated prime wetlands; and
(2) Property boundaries and parcel ID numbers.
Source. (See Revision Notes #1 and #2 at chapter
heading for Env-Wt 700) #12807, eff 12-15-19
Env-Wt
703.03 Report
Requirements. The written report
required by Env-Wt 703.01(b) shall:
(a)
Correlate each prime wetlands by name or number to the map(s) submitted
pursuant to Env-Wt 703.01(a);
(b)
Describe the methods used to delineate the boundaries of the prime
wetlands and evaluate the functions and values of the prime wetlands;
(c)
Present the specific functions and values evaluation data for each prime
wetland;
(d)
Provide baseline documentation of the existing wetland condition that
includes the following:
(1) Photos of
each prime wetlands showing representative natural community systems; and
(2) The location of protected lands, town parks,
town forests, buildings, and infrastructure in relation to the prime wetlands
being designated.
Source. (See Revision Notes #1 and #2 at chapter
heading for Env-Wt 700) #12807, eff 12-15-19
Env-Wt
703.04 Acceptance by Department.
(a)
The department shall review the map(s) and report submitted by a local
authority to determine whether they meet the requirements of Env-Wt 703.02 and Env-Wt 703.03,
respectively.
(b)
If the submission is incomplete or otherwise fails to comply with Env-Wt 703.02 and Env-Wt 703.03, the
department shall notify the local authority of what is needed for the
submission to meet the applicable requirements.
(c)
A local authority that receives a notice from the department pursuant to
(b), above, may resubmit the maps and report only if the deficiencies are
corrected.
(d)
Acceptance of maps and reports by the department shall not constitute
department approval of the specific information contained therein.
Source. (See Revision Notes #1 and #2 at chapter
heading for Env-Wt 700) #12807, eff 12-15-19
Env-Wt 703.05 Challenges to Prime Wetlands Boundaries.
(a)
An applicant whose proposed project is adversely affected by a boundary
of a prime wetlands, or who desires a more precise delineation of that boundary
at a project site than provided pursuant to Env-Wt
703.02(c)(1), may present data, delineations, and other evidence to the
department and to the local authority responsible for the initial delineation
to show an alternative location of the boundary.
(b)
Subject to (c), below, within 90 days of receipt of information provided
pursuant to (a), above, the local authority shall review the information and:
(1) Notify the
applicant and the department of whether or not they
agree that the boundary should be changed; and
(2) If so,
submit new or revised maps and documentation as required by Env-Wt 703.01 for the new boundary.
(c)
If snow covers the existing boundary, the proposed boundary, or both
when the information is submitted, the local authority shall act as specified
in (b), above, within 90 days of the date on which the ground is visible.
(d)
In the event of a dispute, the department shall make the final
delineation based on the data and evidence submitted and an on-site review of
the area with the applicant and representatives of the local authority
responsible for the delineation.
Source. (See Revision Notes #1 and #2 at chapter
heading for Env-Wt 700) #12807, eff 12-15-19
Env-Wt
703.06 Use
of Delineated Prime Wetlands Boundaries.
The application for a project in a prime wetlands
or a duly-established 100-foot buffer for which boundaries have been delineated
under this chapter shall show the boundaries:
(a)
As submitted to and accepted by the department pursuant to Env-Wt 703.04, if no revisions have been made; or
(b)
As revised pursuant to Env-Wt 703.05(d).
Source. (See Revision Notes #1 and #2 at chapter
heading for Env-Wt 700) #12807, eff 12-15-19
PART Env-Wt 704 SUPPLEMENTARY
INFORMATION AND CRITERIA FOR PROJECTS PROPOSED IN PRIME WETLANDS/BUFFER
Env-Wt 704.01 Applicability. Subject to the availability of waivers under
RSA 482-A:11, IV(b)-(c) and Env-Wt 706, this part
shall apply in addition to all applicable criteria in Env-Wt
300 through Env-Wt 600 and Env-Wt
900 to any project proposed in a prime wetlands/buffer.
Source. (See Revision Notes #1 and #2 at chapter
heading for Env-Wt 700) #12807, eff 12-15-19
Env-Wt
704.02 Supplementary
Information and Criteria for Approval. An applicant for a project in a prime
wetlands/buffer shall submit a functional assessment and impact analysis to demonstrate, by clear
and convincing evidence as
required by RSA 482-A:11, IV(a), that the criteria in RSA 482-A:11, IV(a)
are met, namely that the proposed project, either alone or in conjunction with
other human activity, will not result in the significant net loss of any of the
values set forth in RSA 482-A:1, reprinted in Appendix D.
Source. (See Revision Notes #1 and #2 at chapter
heading for Env-Wt 700) #12807, eff 12-15-19
Env-Wt
704.03 Supplementary
Information; Criteria
for Compensatory Mitigation.
(a)
For any project proposed in a prime wetlands/buffer, compensatory
mitigation for unavoidable impacts shall meet the requirements of Env-Wt 800, subject to (b) and (c), below.
(b)
Any applicant proposing a project in a prime wetlands/buffer that
requires compensatory mitigation shall undertake on-site mitigation if
practicable.
(c)
The applicant shall obtain concurrence from the local conservation
commission, if any, or the local governing body for any proposed mitigation
plan for impacts to designated prime wetlands/buffer.
(d)
If the applicant is not able to obtain concurrence as specified in (c),
above, the department shall hold a public hearing to receive comments, impact
analysis, and wetlands evaluation on the mitigation proposal.
Source. (See Revision Notes #1 and #2 at chapter
heading for Env-Wt 700) #12807, eff 12-15-19
Env-Wt
704.04 Public Hearing. A public hearing shall be held by the
department in accordance with the provisions of Env-C 200 that apply to
non-adjudicative proceedings prior to approving an application for any project
in a prime wetlands/buffer if required by Env-Wt
704.03(d) or RSA 482-A:8.
Source. (See Revision Notes #1 and #2 at chapter
heading for Env-Wt 700) #12807, eff 12-15-19
Env-Wt 704.05 Consideration
of Public Input; Decision on Application.
(a)
The department shall consider all comments received at the public
hearing when determining
whether
to approve the application and issue a permit or to deny the application.
(b)
If the department determines that the criteria for issuing a permit have
been met, the department shall proceed as specified in Env-Wt
705.
(c)
If the department determines that the criteria for issuing a permit have
not been met, the
department
shall:
(1) Deny the
application; and
(2) Notify the
applicant in writing of the decision.
(d)
The written notification sent pursuant to (c)(2), above, shall specify
the reason(s) for the denial.
(e)
If the applicant wishes to appeal the decision to deny the application,
the applicant shall do so in accordance with RSA 21-O:14.
Source. (See Revision Notes #1 and #2 at chapter
heading for Env-Wt 700) #12807, eff 12-15-19
PART
Env-Wt 705
NOTIFICATION; PERMIT ISSUANCE; APPEAL
Env-Wt 705.01 Notice Prior
to Permit Issuance.
(a)
As required by RSA 482-A:11, IV(a), the department shall not issue a
permit for a proposed
project
in a prime wetlands/buffer without first notifying the local governing body,
the planning board, if any, and the conservation commission, if any, of the
department’s intent to issue a permit.
(b)
At the same time notice is provided pursuant to (a), above, the
department also shall notify the applicant and any other individual who
submitted an email address and requested to be notified.
(c)
Any recipient of a notice under (a) or (b), above, who wishes to submit
written comments to the department shall do so within 20 calendar days of the
date of the notice.
(d) The department shall not wait the full 20
days to issue the permit if it receives written notice sooner from each person
required to be notified pursuant to (a) and (b), above, that the person has no
objection to the permit being issued.
Source. (See Revision Notes #1 and #2 at chapter
heading for Env-Wt 700) #12807, eff 12-15-19
Env-Wt
705.02 Review
of Comments; Permit Issuance.
The
department shall:
(a)
Review any comments received in response to the notices provided
pursuant to Env-Wt 705.01 within 30 days of the
deadline for comments;
(b)
Determine whether to revise the permitting decision in response to the
comments; and
(c)
Provided the comments have not caused the department to reverse its
decision to issue the permit, issue the permit with a summary of comments
received and the department’s responses thereto.
Source. (See Revision Notes #1 and #2 at chapter heading
for Env-Wt 700) #12807, eff 12-15-19
Env-Wt
705.03 Appeal. Any person aggrieved by a decision to issue a
permit for a proposed project under this chapter who wishes to appeal the
decision shall do so in accordance with RSA 21-O:14.
Source. (See Revision Notes #1 and #2 at chapter
heading for Env-Wt 700) #12807, eff 12-15-19
PART Env-Wt
706 WAIVERS FOR ACTIVITIES IN PRIME
WETLANDS/BUFFERS
Env-Wt
706.01 Availability of Waivers for
Activities in Prime Wetlands/Buffers.
(a)
As provided in RSA 482-A:11, IV(b)(1), a property owner may request from
the department a waiver to perform forest management work and related
activities, in the forested portion of a prime wetlands/buffer, that do not
qualify under the notification process for forest management or timber harvest
activities having minimum wetlands impacts because of the prime wetlands designation.
(b)
As provided in RSA 482-A:11, IV(c), a property owner may request from
the department a waiver to perform work not addressed by (a), above, in any
portion of a duly-established 100-foot buffer (buffer)
on his or her property.
Source. (See Revision Notes #1 and #2 at chapter
heading for Env-Wt 700) #12807, eff 12-15-19
Env-Wt
706.02 Requirements for Waiver
Requests for Forestry Activities.
(a) The applicant for a waiver under Env-Wt 706.01(a) shall submit a request for a waiver to the
department at the same time the applicant submits the notification for an SPN
or PBN or an application for an EXP or standard permit, as applicable, by
submitting a completed Prime Wetlands Waiver Forestry & Other Activities,
NHDES-W-06-088, dated May 2020.
(b)
The waiver request shall include the following:
(1) The
information required by RSA 482-A:11, IV(b)(1), as follows:
a. A sketch of
the property depicting the best approximate location of each prime wetlands/
buffer in which work is proposed and the location of proposed work, including
access roads;
b. A written
description of the work to be performed and a copy of the notice of intent to
cut, if applicable; and
c. A list of
the prime wetlands values as identified by the municipality in designating each
prime wetlands under RSA 482-A:15;
(2) Such
information as is required to demonstrate that there will be no significant net
loss of wetlands values identified by the municipality when the prime
wetlands/buffer was designated;
(3) As
authorized by RSA 482-A:11, IV(b)(4)(B), a filing fee of:
a. $200 for
projects that would otherwise qualify for a minimum impact forestry notice if
it was not located in or near a designated prime wetlands/buffer;
b. $500 for minor impact projects that do not
qualify under a., above, and are not major projects; and
c. $1,250 for major impact projects classified
regardless of prime wetlands designation; and
(4) Written
comments on the application from the conservation commission or local governing
authority, as applicable, stating that:
a. The members
have no objections to the requested waiver;
b. The members have no objections to a waiver if
the conditions specified in the comments are met; or
c. The members
object to the waiver for the reason(s) stated in the comments.
(c)
As required by RSA 482-A:11, IV(b)(3), at the time the applicant submits
the waiver request to the department, the applicant also shall submit, via certified
mail, a copy of the waiver request and all supporting documentation to the
local governing body, the planning board, if any, and the conservation
commission, if any, of the municipalities in which any prime wetlands/buffer
associated with the application are located.
(d)
As also required by RSA 482-A:11, IV(b)(3), if a prime wetlands/buffer
associated with the application extends into an abutting property, the property
owner requesting the waiver shall provide a copy of the waiver request and all
supporting documentation to the owner of that abutting property.
(e)
The applicant shall send the notice required by (d), above, by certified
mail.
Source. (See Revision Notes #1 and #2 at chapter
heading for Env-Wt 700) #12807, eff 12-15-19; amd by #13124, eff 10-23-20
Env-Wt 706.03 Issuance
of Waivers for Forestry Activities.
(a)
As provided in RSA 482-A:11, IV(b)(3), the department shall not issue a
waiver for forestry activities prior to 14 days after receipt of the waiver
request, provided however that a municipal conservation commission may request
an extension on such waiver issuance, not to exceed 14 days, which the department
shall grant if requested.
(b)
As provided in RSA 482-A:11, IV(b)(2), the department shall not issue a
waiver unless the department determines that there will be no significant net
loss of wetland values as identified:
(1) By the
local conservation commission or local governing authority per RSA 482-A:11,
IV(b)(1)(C); and
(2) In RSA 482-A:1.
(c)
If the department determines that the criteria for issuing a waiver are
met, the waiver shall be issued as part of the SPN or permit, as applicable.
(d)
If the department is unable to determine, based on the information
submitted, that the proposed work will not cause a significant net loss of
wetland values, the department shall notify the applicant of what additional
information is needed and establish a deadline in consultation with the
applicant for the submission of the additional information.
(e)
If the department determines that the project would not cause a
significant net loss of wetland values if certain conditions were met, the
department shall place such conditions on the waiver as are necessary to
protect the prime wetlands reSource.
Source. (See Revision Notes #1 and #2 at chapter
heading for Env-Wt 700) #12807, eff 12-15-19
Env-Wt 706.04 Requirements
for Waiver Requests for Other Activities in Buffers.
(a)
The applicant for a waiver under Env-Wt
706.01(b) shall submit a request for a waiver to the department at the same
time the applicant submits the notification for an SPN or application for a
PBN, EXP, or standard permit, as applicable, by submitting a completed Prime
Wetlands Waiver Forestry & Other Activities, NHDES-W-06-088, dated May
2020.
(b)
The waiver request shall include the following:
(1) A sketch of
the property depicting the best approximate location of the duly-established
100-foot buffer in which work is proposed and the location of proposed work,
including access roads;
(2) A written
description of the work to be performed;
(3) A list of
the prime wetlands values identified by the municipality when the prime
wetlands associated with the buffer was designated;
(4) Such
information as is required to demonstrate that there will be no significant net
loss of wetlands values identified by the municipality when the prime wetlands was designated; and
(5) As
authorized by RSA 482-A:11, IV(b)(4)(B), a filing fee of:
a. $200 for
projects that would otherwise qualify as a minimum impact project if it was not
located in a designated prime wetlands buffer;
b. $500 for
projects that do not qualify under a., above, and are not major projects; and
c. $1,250 for
major projects.
(c)
As required by RSA 482-A:11, IV(c):
(1) At the time the applicant submits the waiver
request to the department, the applicant also shall notify, by certified mail,
the local governing body, the planning board, if any, and the conservation
commission, if any, of the municipalities in which the waiver is being sought
that the waiver is being requested; and
(2) If the buffer associated with the application
extends onto an abutting property, the property owner requesting the waiver
shall provide notice that the waiver is being requested to the owner of that
abutting property.
(d)
The applicant shall send the notice required by (c)(2), above, by
certified mail.
Source. (See Revision Notes #1 and #2 at chapter
heading for Env-Wt 700) #12807, eff 12-15-19; amd by #13124, eff 10-23-20
Env-Wt
706.05 Issuance of Waivers for Other
Activities in Duly-Established 100-Foot Buffers.
(a)
The department shall not issue a waiver under Env-Wt
706.01(b) prior to 14 days after receipt of the waiver request, provided
however that a municipal conservation commission may request an extension on
such waiver issuance, not to exceed 14 days, which the department shall grant
if and as requested.
(b)
The department shall not issue a waiver unless the department determines
that there will be no significant net loss of wetland values as identified:
(1) By the
local conservation commission or local governing authority; and
(2) In RSA 482-A:1.
(c)
If the department determines that the criteria for issuing a waiver are
met, the waiver shall be issued as part of the SPN or permit, as applicable.
(d)
If the department is unable to determine, based on the information
submitted, that the proposed work will not cause a significant net loss of
wetland values, the department shall notify the applicant of what additional
information is needed and establish a deadline in consultation with the
applicant for the submission of the additional information.
(e)
If the department determines that the project would not cause a
significant net loss of wetland values if certain conditions were met, the
department shall place such conditions on the waiver as are necessary to
protect the prime wetlands reSource.
Source. (See Revision Notes #1 and #2 at chapter
heading for Env-Wt 700) #12807, eff 12-15-19
Env-Wt
706.06 Waiver Term; Extensions of Waivers.
(a)
Any waiver issued under this part shall be valid for the term of the
permit or SPN with which it is associated.
(b)
If the person holding the permit or SPN wishes to extend the permit or
SPN, the person shall do so in accordance with Env-Wt
314.05, provided that:
(1) The
information necessary to support the request to extend the waiver shall be as
specified in Env-Wt 706.02 or Env-Wt
706.04 for the initial request, as applicable; and
(2) The
procedures and criteria for considering the request shall be as specified in
Env-Wt 706.03 or Env-Wt
706.05 for the initial request, as applicable.
Source. (See Revision Notes #1 and #2 at chapter
heading for Env-Wt 700) #12807, eff 12-15-19
Appendix A: State Statutes
Implemented
Rule Section(s) |
State Statute(S)
Implemented |
|
Env-Wt 700 |
RSA 482-A:1; RSA 482-A:3; RSA 482-A:4; RSA 482-A:11,
RSA 482-A:15 |
|
Env-Wt 706.02(a); 706.04(a) |
RSA 482-A:1 - 4, 6, 8 - 34; RSA 483:8-a, III |
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: |
702.01(c)(2)a. |
Method for
Inventorying and Evaluating Wetlands in New Hampshire (2015) |
University
of New Hampshire Cooperative Extension Durham, NH 03824 Available at no
charge at: http://nhmethod.org/ |
702.01(c)(2)b. |
Method for the
Evaluation and Inventory of Vegetated Tidal Marshes in New Hampshire (1993) |
Audubon Society of New Hampshire 84 Silk Farm Road Concord, NH 03301 Available at no charge at: https://www.govinfo.gov/content/pkg/CZIC-qh87-3-m48-1993/pdf/CZIC-qh87-3-m48-1993.pdf |
Appendix C: Statutory Definition
482-A:15
I-a.
For the purposes of this chapter, “prime wetlands” shall mean any
contiguous areas falling within the jurisdictional definitions of RSA 482-A:2,
X and RSA 482-A:4 that, because of their size, unspoiled character, fragile
condition, or other relevant factors, make them of substantial
significance. A prime wetland shall be
at least 2 acres in size, shall not consist of a water body only, shall have at
least 4 primary wetland functions, one of which shall be wildlife habitat, and
shall have a width of at least 50 feet at its narrowest point. The boundary of
a prime wetland shall coincide, where present, with the upland edge of any
wetland, as defined in RSA 482-A:2, X, that is part of the prime wetland.
On-site verification of proposed prime wetland boundaries shall be performed
where landowner permission is provided.
Appendix D: Other
Statutory Provisions
482-A:1
Finding of Public Purpose. – It is found to be
for the public good and welfare of this state to protect and preserve its
submerged lands under tidal and fresh waters and its wetlands, (both salt water
and fresh-water), as herein defined, from despoliation and unregulated
alteration, because such despoliation or unregulated alteration will adversely
affect the value of such areas as sources of nutrients for finfish, crustacea,
shellfish and wildlife of significant value, wil damage or destroy habitats and reproduction
areas for plants, fish and wildlife of importance, will eliminate, depreciate
or obstruct the commerce, recreation and aesthetic enjoyment of the public,
will be detrimental to adequate groundwater levels, will adversely affect
stream channels and their ability to handle the runoff of waters, will disturb
and reduce the natural ability of wetlands to absorb flood waters and silt,
thus increasing general flood damage and the silting of open water channels,
and will otherwise adversely affect the interests of the general public.
482-A:11 Administrative Provisions. –
I. (a) Any municipality, by its conservation commission,
or, in the absence of a conservation commission, the planning board, or, in the
absence of a planning board, the local governing body, may undertake to
designate, map, and document prime wetlands lying within its boundaries, or if
such areas lie only partly within its boundaries, then that portion lying
within its boundaries. The conservation commission, planning board, or
governing body shall give written notice to the owner of the affected land and
all abutters 30 days prior to the public hearing, before designating any
property as prime wetlands.
…
IV. (a) The department shall not grant a permit with
respect to any project to be undertaken in an area mapped, designated, and
filed as a prime wetland pursuant to RSA 482-A:15, or within 100 feet of any
prime wetland where a 100 foot buffer was required at the time of designation,
unless the department first notifies the local governing body, the planning
board, if any, and the conservation commission, if any, in the municipality
within which the wetlands lie, either in whole or in part, of its
decision. Any such permit shall not be
issued unless the department is able, specifically, to find clear and
convincing evidence on the basis of all information considered by the
department, and after a public hearing, if a public hearing is deemed necessary
under RSA 482-A:8, that the proposed project, either alone or in conjunction
with other human activity, will not result in the significant net loss of any
of the values set forth in RSA 482-A:1.
This paragraph shall not be construed so as to relieve the department of
its statutory obligations under this chapter to protect wetlands not so mapped
and designated.
(b)(1)
A property owner may request from the department a waiver from
subparagraph (a), under rules adopted by the department, to perform forest
management work and related activities in the forested portion of a prime
wetland or its 100-foot buffer, where such buffer was required at the time of
designation, that do not qualify under the notification of forest management or
timber harvest activities having minimum wetlands impact process. The request
for the waiver shall include, but not be limited to:
(A) A sketch of the property depicting the best
approximate location of each prime wetland and its 100-foot buffer, where such
buffer was required at the time of designation, in which work is proposed and
the location of proposed work, including access roads;
(B) A written description of the work to be
performed and a copy of the notice of intent to cut, if applicable; and
(C) A list of the prime wetland values as
identified by the municipality in designating each prime wetland under RSA
482-A:15.
(2) A waiver shall be issued only when the
department is able to determine there will be no significant net loss of
wetland values as identified in subparagraph (b)(1)(C) and RSA 482-A:1. If the
department determines that the proposed work may cause a significant net loss
of wetland values, the department may require the submittal of additional
information. The department may place conditions on the waiver that it deems
necessary to protect the prime wetland resource and shall set the term of the
permit.
(3) At the time that the waiver request
is submitted to the department, the applicant shall also submit a copy of the
waiver request and all supporting documentation, via certified mail, to the
local governing body, the planning board, if any, and the conservation
commission, if any, of the municipalities in which any prime wetlands associated
with the application are located. Where a prime wetland associated with the
application extends into an abutting property, the property owner requesting
the waiver shall provide notice to the owner of that abutting property. A waiver shall not be issued by the
department prior to 14 days from its receipt of the waiver request. A municipal
conservation commission may request an extension on such waiver issuance, not
to exceed 14 days.
(4) The department shall adopt rules under RSA
541-A relative to:
(A) The process and criteria for considering and
granting waiver requests made pursuant to RSA 482-A:11, IV(b)(1), including:
(i) Methods for
determining whether a proposed forest management project may result in a
significant net loss of wetland values.
(ii) Conditions that may be placed on a waiver
when deemed necessary to protect the prime wetland reSource.
(iii) Criteria for granting extensions of waiver
issuances pursuant to RSA 482-A:11, IV(b)(3).
(iv) Specified criteria for identifying abutters
and subsequent notification.
(B) Filing fees for waiver applications.
(c) A property owner may request a waiver from the
department, under rules adopted by the department under RSA 541-A, from the
provisions of this chapter to perform work not addressed under subparagraph (b)
within a portion of any 100-foot buffer of a prime wetland on his or her
property as provided in subparagraph (a). At the time of the waiver request,
the property owner shall notify, by certified mail, the local governing body,
the planning board, if any, and the conservation commission, if any, of the municipalities
in which the waiver is being sought that a waiver is being sought from the
department. Where a buffer associated with the application extends into an
abutting property, the property owner requesting the waiver shall provide
notice to the owner of that abutting property.
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 wetland contiguous to a
tier 3 or higher watercourse; (d) Is a designated prime
wetlands 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 |