CHAPTER Env-Wt 800 COMPENSATORY
MITIGATION
Authority: RSA 482-A:11,
RSA 482-A:31
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
800 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
#12808, effective 12-15-19, readopted with amendment Chapter Env-Wt 800 under the chapter heading
“Compensatory Mitigation.” Env-Wt 802.07 defining “service area” and Env-Wt 802.09 defining “sub-watershed’ are new rules.
Document
#12808 replaces all prior
filings for rules in the former Chapters Wt 800 and
Env-Wt 800.
The prior filings for former
Chapter Wt 800 up through Document #8341, effective
4-25-05, included the following documents:
#4352,
eff 1-4-88
#5762,
eff 12-21-93
#6219,
eff 4-4-96
#6404,
INTERIM, eff 12-21-96, EXPIRED 4-20-97
#6498-B,
eff 4-23-97
#7205,
eff 2-24-00
#8062,
eff 3-13-04
#8341,
eff 4-25-05
The
prior fillings for former Chapter Env-Wt 800 after
Document #8341 was effective 4-25-05 included the
following documents:
#8762, INTERIM, eff 11-21-06, EXPIRED 5-20-07
#9717, eff 5-25-10
#11000, eff 2-1-16
Env-Wt
801.01 Purpose. The purpose of this chapter is to establish
the criteria and procedures for submission and review of compensatory
mitigation proposals that are required to compensate for the loss of wetland
functions and values resulting from permitted permanent impacts to
jurisdictional areas, including permanent impacts to stream banks and stream
channels.
Source. #4352, eff 1-4-88; ss by #5762, eff 12-21-93;
amd by #6219, eff 4-4-96; rpld
by #6404, INTERIM, eff 12-21-96
New. #6498-B, eff
4-23-97; repealed and moved by #7205, eff 2-24-00 (See Env-C 614 Administrative Fines)
New. #8062, eff 3-13-04; ss by #8341, eff 4-25-05
(See Revision Note at chapter heading of Env-Wt 800);
ss by #8762, INTERIM, eff 11-21-06, EXPIRED: 5-20-07
New. #8911, eff 6-20-07;
ss by #9717, eff 5-25-10; ss by #11000, eff 2-1-16; ss by #12808, eff 12-15-19
(See Revision Note #2 at chapter heading for Env-Wt
800)
Env-Wt 801.02 Applicability.
This chapter shall apply to all compensatory mitigation proposals
required by Env-Wt 313.04 and for proposals that are
eligible under RSA 482-A:29, I, for funding from the aquatic resource compensatory
mitigation fund (“ARM Fund”).
Source. #8062, eff 3-13-04; ss by #8341, eff 4-25-05
(See Revision Note at chapter heading of Env-Wt 800);
ss by #8762, INTERIM, eff 11-21-06, EXPIRED: 5-20-07
New. #8911, eff 6-20-07;
ss by #11000, eff 2-1-16;
ss by #12808, eff 12-15-19 (See Revision Note #2 at chapter heading for Env-Wt 800)
Env-Wt 801.03
Determination of Type of Compensatory
Mitigation Required.
(a) The applicant
shall first consider permittee-responsible mitigation opportunities by
determining whether on-site mitigation is practicable and, if not, obtaining a
list of local mitigation projects from the conservation commission of the
municipality in which the project is proposed. If permittee-responsible
mitigation is practicable, the applicant shall propose such mitigation.
(b) If on-site
mitigation is not practicable for permanent wetlands impacts and the conservation
commission does not have a list of local mitigation projects when the list is
requested or if none of the projects on the list are appropriate mitigation for
the applicant’s proposed project, the applicant shall provide an explanation
and documentation relative to:
(1) Why preservation of an aquatic resource
buffer as specified in Env-Wt 803.01(h) is not practicable;
(2) Why restoration, enhancement, or creation of
wetlands on the property, as applicable, as specified in Env-Wt 803.01(i) is not practicable;
and
(3) Calculation of an in-lieu mitigation payment
as specified in RSA 482-A:30.
(c) If
permittee-responsible mitigation is not practicable for permanent stream
impacts and the municipality does not have a list of local mitigation projects
or if none of the projects on the list are appropriate mitigation for the
applicant’s proposed project, the applicant shall provide an explanation and
documentation relative to:
(1) Why preservation of an aquatic resource
buffer as specified in Env-Wt 803.01(h) is not practicable;
(2) Why stream restoration and enhancement
activities as specified in Env-Wt 803.01(j) on the
property and within the same Hydrologic Unit Code 12-digit (HUC 12-digit)
watershed as the impacts is not practicable; and
(3) Calculation of an in-lieu payment as
specified in RSA 482-A:30-a.
Source. #8911, eff 6-20-07;
ss by #9717, eff 5-25-10; ss by #11000, eff 2-1-16; ss by #12808,
eff 12-15-19 (See Revision Notes #1 and #2 at chapter heading for Env-Wt 800)
Env-Wt 801.04 Abbreviations and Acronyms. Abbreviations and acronyms used throughout
this chapter that are not defined in Env-Wt 802 shall
have the meaning assigned in Env-Wt 100, as
summarized in Appendix E.
Source. #12808, eff 12-15-19
(See Revision Notes #1 and #2 at chapter heading for Env-Wt
800)
Env-Wt 802.01
“Conservation easement” means a legal agreement between a landowner and
a land trust or governmental agency that permanently limits uses of the land in order to protect its conservation values.
Source. #8062, eff 3-13-04; ss by #8341, eff 4-25-05
(See Revision Note at chapter heading of Env-Wt 800);
ss by #8762, INTERIM, eff 11-21-06, EXPIRED: 5-20-07
New. #8911, eff 6-20-07;
ss by #11000, eff 2-1-16; ss by #12808, eff 12-15-19 (See Revision Note #2 at
chapter heading for Env-Wt 800)
Env-Wt 802.02
“Conservation interest” means:
(a)
The fee simple ownership of a parcel of land where the land is to be
protected from development in perpetuity; or
(b)
A conservation easement.
Source. #8762, INTERIM, eff 11-21-06, EXPIRED: 5-20-07
New. #8911, eff 6-20-07;
ss by #11000, eff 2-1-16; ss by #12808, eff 12-15-19 (See Revision Notes #1 and
#2 at chapter heading for Env-Wt 800)
Env-Wt 802.03 “HUC
12-digit watershed” means the hydrologic unit code 12-digit watershed as
developed by the U.S. Geological Survey (USGS).
Source.
#11000, eff 2-1-16; ss by #12808, eff 12-15-19 (See
Revision Notes #1 and #2 at chapter heading for Env-Wt
800)
Env-Wt 802.04 “In-lieu
mitigation payment” means a form of compensatory mitigation where funds are
provided as contemplated by RSA 482-A:28 in lieu of completing
permittee-responsible mitigation.
Source. #8762, INTERIM, eff 11-21-06, EXPIRED: 5-20-07
New. #8911, eff 6-20-07;
ss by #11000, eff 2-1-16 (formerly Env-Wt 802.03); ss by #12808, eff
12-15-19 (See Revision Notes #1 and #2 at chapter heading for Env-Wt 800)
Env-Wt 802.05
“Permittee-responsible mitigation” means a form of compensatory
mitigation where an aquatic resource restoration or creation project in
accordance with Env-Wt 805 or Env-Wt
806 or a project to preserve an aquatic resource buffer in accordance with Env-Wt 804 is undertaken by the permittee, for which the
permittee retains full responsibility.
Source. #8762, INTERIM, eff 11-21-06, EXPIRED: 5-20-07
New. #8911, eff 6-20-07;
ss by #11000, eff 2-1-16 (formerly Env-Wt 802.04); ss by #12808,
eff 12-15-19 (See Revision Notes #1 and #2 at chapter heading for Env-Wt 800)
Env-Wt 802.06 “Qualified professional” means an individual
with a combination of education and experience, such as a fluvial
geomorphologist or hydrologist, who has knowledge of stream systems that is
sufficient to enable the individual to evaluate stream systems and to develop
appropriate mitigation.
Source. #8762, INTERIM, eff 11-21-06, EXPIRED: 5-20-07
New. #8911, eff 6-20-07;
ss by #11000, eff 2-1-16 (formerly Env-Wt 802.05); ss by #12808,
eff 12-15-19 (See Revision Notes #1 and #2 at chapter heading for Env-Wt 800)
Env-Wt 802.07 “Service area” means one of 9 major river
basins, organized as modified HUC 8-digit watersheds, that contains the
jurisdictional area(s) impacted by a project and how ARM funds are collected
and disbursed to offset losses of aquatic resources.
Source. #12808, eff 12-15-19
(See Revision Notes #1 and #2 at chapter heading for Env-Wt
800)
Env-Wt 802.08 “Stewardship plan” means a plan for undertaking
the responsibilities described in Env-Wt 808.16.
Source. #11000, eff 2-1-16; ss by #12808, eff 12-15-19 (formerly Env-Wt 802.07) (See Revision Notes #1 and #2 at
chapter heading for Env-Wt 800)
Env-Wt 802.09 “Sub-watershed” means a drainage area of
approximately 20,000 acres, equivalent to a 6th-level HUC 12-digit watershed.
Source. #12808, eff 12-15-19
(See Revision Notes #1 and #2 at chapter heading for Env-Wt
800)
PART Env-Wt
803 COMPENSATORY MITIGATION PROPOSALS
Revision Note:
Document
#11000, effective 2-1-16, adopted, readopted, and readopted with amendments the
rules in Chapter Env-Wt 800 on compensatory
mitigation, including all rules in Part Env-Wt 803 on
compensatory mitigation proposals which were extensively renumbered as follows:
Former
Rule Current
Rule
Env-Wt 803.01 Env-Wt 803.01-803.03
Env-Wt 805.02(m) Env-Wt 803.04
Env-Wt 803.02 Env-Wt 803.05
Env-Wt 803.03 Env-Wt 803.06
Env-Wt 803.04 Env-Wt 803.07
Env-Wt 803.05 Env-Wt 803.08
Env-Wt 803.06-803.08 Env-Wt 803.09-803.11
Most of the rules in the former Part Env-Wt 803 had last been filed under Document #8911, effective
6-20-07. These rules did not expire on
6-20-15 since they were extended pursuant to RSA 541-A: 14-a until replaced by
the rules in Document #11000, effective 2-1-16.
Document
#11000 replaces all prior filings for the rules formerly in Chapter Env-Wt 800, including Part Env-Wt
803. The prior filings for rules in the
former Env-Wt 803 and the former Env-Wt 805.02 include the following documents:
#8062,
eff 3-13-04
#8341,
eff 4-25-05 (See Revision Note at chapter heading of
Env-Wt 800)
#8762,
INTERIM, eff 11-21-06, EXPIRED 5-20-07 (did not affect
Env-Wt 805.02)
#8911,
eff 6-20-07
#9717,
eff 5-25-10
Env-Wt
803.01 Plan
and Report Required for All Mitigation Proposals. With each mitigation proposal, the applicant
shall submit a plan and report prepared by a certified wetland scientist or
qualified professional, as applicable, that:
(a)
Identifies the size of the proposed project’s impact to each
jurisdictional area;
(b)
Identifies each type of jurisdictional area to be impacted, with
wetlands being classified by a certified wetland scientist using the federal
classification method, available as noted in Appendix B;
(c)
Explains which mitigation options are being proposed, such as wetland
restoration, aquatic resource buffer preservation, wetland creation, or payment
to the aquatic resource mitigation (ARM) fund;
(d)
If other than payment to the ARM fund is proposed, shows the location of
the proposed mitigation site;
(e)
Includes a functional assessment of the impacted jurisdictional area(s);
(f)
Includes a functional assessment of the proposed mitigation site;
(g)
Provides a date when a complete mitigation proposal will be submitted to
the department;
(h) If an aquatic resource buffer preservation
project is proposed:
(1) Documents
the current conditions;
(2) Identifies
any existing encumbrances or restrictions on the property;
(3) Summarizes
the conservation goals in accordance with Env-Wt 804;
and
(4) Contains a
baseline documentation report in accordance with Env-Wt
808.15;
(i) If wetland restoration or creation is
proposed:
(1) Identifies
the predominant functions to be created, restored, or replaced; and
(2) Summarizes
the proposed measures of the proposed project in accordance with Env-Wt 803.02(b), Env-Wt 803.03, and
Env-Wt 803.04;
(j)
If stream restoration or enhancement is proposed, identifies the
predominant functions to be restored or enhanced in accordance with Env-Wt 806;
(k)
Includes a detailed account of the compensatory mitigation
recommendations, if any, provided by the conservation commission or governing
body, such as a copy of the meeting minutes, from the town in which the project
is located;
(l)
For a project having impacts within a designated river corridor as
defined by RSA 483:4, XVIII, includes a detailed account of the recommendations,
if any, provided by the local river management advisory committee established
pursuant to RSA 483:8-a; and
(m)
If permittee-responsible mitigation will be proposed, includes a
proposed monitoring plan as described in Env-Wt
803.04.
Source. (See Revision Note at part heading for Env-Wt 803) #11000, eff 2-1-16; ss by
#12808, eff 12-15-19 (See Revision Notes #1 and #2 at chapter heading for Env-Wt 800)
Env-Wt 803.02 Additional
Information for Wetland Impact Projects and Wetland Restoration, Enhancement, or Creation Mitigation Proposals.
(a)
For a wetland impact project, the functional assessments submitted
pursuant to Env-Wt 803.01(e) and (f) shall be
prepared using:
(1) The methods
specified in:
a. The U.S. ACE
New England District highway methodology workbook supplement, 1999, reprinted
in 2015, (US ACE Highway Workbook Supplement), available as noted in Appendix
B; or
b. The Method
for Inventorying and Evaluating Freshwater Wetlands in New Hampshire, 2013
edition, available as noted in Appendix B; and
(2) Data on the
surrounding area, including but not limited to:
a. Land use;
b. Soils;
c. Habitat
information from the NHF&G WAP, including critical habitats and populations
of the state’s species of conservation and management concern;
d. Whether
there are any rare, special concern, or state or federally listed threatened or
endangered species present, including any flora, fauna, or migratory species;
and
e. Exemplary
natural communities and natural community systems identified by NHB.
(b)
For permittee-responsible wetlands restoration, enhancement, or
creation, the plan and report submitted pursuant to Env-Wt
803.01 also shall:
(1) Include a
functional assessment as described in (a), above, of each proposed mitigation site;
(2) Describe
how the proposal creates hydrologic conditions or connections that will produce
the desired wetland functions or values to be restored or created;
(3) Contain
detailed plans with existing and proposed grades, projected water fluctuations,
and proposed wetland cover types;
(4) Describe
construction procedures and timing of the proposed work;
(5) Contain a
planting proposal with the source of soils to be used, erosion controls to be
installed, and an invasive species control plan, if applicable;
(6) Identify
the location of the mitigation site relative to other protected lands with an
explanation of how the site meets the selection criteria stated in Env-Wt 805.02; and
(7) Explain why
the mitigation project will result in a resource with overall functions and
values equal to or greater than the jurisdictional area(s) impacted by the
project.
Source. (See Revision Note at part heading for Env-Wt 803) #11000, eff 2-1-16; ss by
#12808, eff 12-15-19 (See Revision Notes #1 and #2 at chapter heading for Env-Wt 800)
Env-Wt 803.03 Additional
Information for Stream Impact Projects and Stream Restoration or Enhancement Mitigation Proposals.
(a)
For a stream impact project, the plan and report prepared pursuant to
Env-Wt 803.01 shall include the following information
for each impact area:
(1) Stream tier
as described in Env-Wt 900;
(2) Stream
type, using the Rosgen classification system as
described in Applied River Morphology, Dave Rosgen,
1996, available as noted in Appendix B;
(3) Bed material;
(4) Channel
form, including channel width and depth for a distance of the channel width
multiplied by 15, both upstream and downstream of the project site;
(5) Position
within the surrounding landscape;
(6) Data on the
surrounding area as specified in Env-Wt 803.02(a)(2);
(7) Floodplains
within the project area; and
(8) Dominant
adjacent vegetation.
(b)
For a permittee-responsible stream restoration or enhancement mitigation
project, the plan and report submitted pursuant to Env-Wt
803.01 also shall:
(1) Identify
the location of the mitigation project;
(2) Provide the
information specified in (a), above; and
(3) Explain how
the project meets the goals stated in Env-Wt
806.02(a) and how the mitigation proposal will result in added value to the
aquatic resource.
Source. (See Revision Note at part heading for Env-Wt 803) #11000, eff 2-1-16; ss by
#12808, eff 12-15-19 (See Revision Notes #1 and #2 at chapter heading for Env-Wt 800)
Env-Wt
803.04 Mitigation
Project Monitoring.
(a)
For each permittee-responsible restoration, enhancement, or creation
mitigation project, the applicant shall prepare a proposed monitoring plan that
is commensurate with the complexity of the mitigation project to be undertaken
and that:
(1) Establishes
the performance standards for the mitigation project;
(2) Describes
the monitoring that will be conducted following construction of the mitigation
project, by identifying how the monitoring will be accomplished, how many
growing seasons the monitoring will span, and whether and how the monitoring
will change as the project begins to achieve the established performance standards;
(3) Provides
the name, daytime telephone number, and email address, if any, of the certified
wetland scientist or qualified professional, as applicable, who will be
responsible for conducting the monitoring and assessing whether the mitigation
project has met the specified performance standards;
(4) Describes
the measures that will be taken during construction and after completion of the
project for which the permit is being sought to promote success of the
mitigation project; and
(5) Explains
how the department will be informed of the condition of the mitigation project
over time, which shall include not less than written annual reports.
(b)
Unless modified pursuant to Env-Wt 807.05,
monitoring shall span:
(1) No fewer
than 5 growing seasons for any mitigation project that includes plantings; or
(2) A length of
time that is reasonable under the circumstances for any project that does not
include planting, such as creating near-shore aquatic habitat by felling timber
into the water.
Source. (See Revision Note at part heading for Env-Wt 803) #11000, eff 2-1-16; ss by
#12808, eff 12-15-19 (See Revision Notes #1 and #2 at chapter heading for Env-Wt 800)
Env-Wt
803.05 Proposal for In-Lieu
Mitigation Payment. For a project
for which compensatory mitigation is proposed as an in-lieu mitigation payment,
the plan and report prepared pursuant to Env-Wt
803.01 also shall include:
(a)
The information required by Env-Wt 803.02 or
Env-Wt 803.03, as applicable based on the type of
impact; and
(b)
The explanations required by Env-Wt 803.10(b)
and by Env-Wt 803.10(c) or (d), as applicable.
Source. (See Revision Note at part heading for Env-Wt 803) #11000, eff 2-1-16; ss by #12808, eff 12-15-19 (See
Revision Notes #1 and #2 at chapter heading for Env-Wt
800) amd by #13124, eff 10-23-20
Env-Wt 803.06 Compensatory
Mitigation Site Location.
(a) For a project for which permittee-responsible
mitigation is proposed, the applicant shall give preference to any mitigation
site that:
(1) Is located in the same HUC 12-digit watershed
as the impacted jurisdictional area(s); and
(2) Abuts land that already is subject to a
conservation interest.
(b) If a stream crossing project is not a
replacement for an existing tier 3 stream crossing, the applicant may propose,
as mitigation, upgrading a similar tier 2 or tier 3 stream crossing within the
same watercourse or in the same town as the project.
Source. (See Revision Note at part heading for Env-Wt 803) #11000, eff 2-1-16; ss by
#12808, eff 12-15-19 (See Revision Notes #1 and #2 at chapter heading for Env-Wt 800)
Env-Wt
803.07 Compensation
Amount.
(a)
The applicant may propose a combination of the types of compensatory
mitigation listed in Table 800‑1 to meet the requirements of this
section.
(b)
For a project for which permittee-responsible mitigation is proposed,
the department shall not require the applicant to propose mitigation ratios
exceeding the ratios as listed in Table 800-1 for approval of any project under
this chapter, provided, however, that nothing herein shall prevent the
department from accepting a proposal that exceeds the mitigation ratios listed
in Table 800-1.
(c)
As required by RSA 482-A:30, the department shall calculate the amount
of an in-lieu mitigation payment for wetland impact projects by summing the
following items:
(1) The cost that would have been incurred if a wetland
of the same type was constructed at the ratios listed in Table 800-1 based on a
price of $65,000 per acre of wetland created, adjusted according to the annual
simple rate of interest on judgments established by RSA 336:1, II;
(2) The area of
wetlands that would need to be constructed, at the ratios established in Table
800-1, times the cost of land where the impact is occurring as calculated by
the assessed land values determined by the NH department of revenue
administration which are equalized and divided by the number of acres in each
municipality to yield a per acre equalized land value; and
(3) The
administrative assessment authorized by RSA 482-A:30, III.
(d)
For permittee-responsible stream mitigation, the applicant shall
demonstrate that the amount of compensatory mitigation meets or exceeds the
total amount of impacted stream area that may include the stream bottom and
associated stream banks as calculated according to Env-Wt
407.03(b).
(e)
As required by RSA 482-A:30-a, the department shall calculate the amount
of an in-lieu mitigation payment for stream or shoreline resource losses by
summing the following items:
(1) The cost
that would have been incurred if a stream of the same type were restored at the
ratios established in Table 800-1, based on a price of $200 per linear foot of
channel or bank impacts or both, adjusted according to the annual simple rate
of interest on judgments established by RSA 336:1, II; and
(2) The
administrative assessment authorized by RSA 482-A:30-a, II.
(f)
For a project that would have both wetland impacts and stream impacts,
the department shall calculate the amount of an in-lieu mitigation payment as
follows:
(1) For wetland
impacts and stream impacts that can be distinguished from each other, by
summing the payments calculated pursuant to (c) and (e), above; and
(2) For wetland
impacts and stream impacts that cannot be distinguished from each other, by
calculating the amount of an in-lieu mitigation payment for the impact that would
result in the greater environmental loss pursuant to (c) or (e), above, as
applicable.
(g)
For a project for which the applicant proposes a combination of
permittee-responsible mitigation and an in-lieu mitigation payment, the
department shall not require the applicant to propose a combined total that
exceeds the mitigation ratios listed in Table 800-1, provided, however, that
nothing herein shall prevent the department from accepting a proposal that
exceeds those mitigation ratios.
Source. (See Revision Note at part heading for Env-Wt 803) #11000, eff 2-1-16; ss by
#12808, eff 12-15-19 (See Revision Notes #1 and #2 at chapter heading for Env-Wt 800)
Env-Wt
803.08 Compensatory
Mitigation Ratios.
(a)
For permittee-responsible mitigation, other than for stream impacts, the
applicant shall demonstrate that the compensatory mitigation plan meets or
exceeds the ratios listed in Table 800-1, relative to the amount of impacted
jurisdictional areas:
Table 800-1: Minimum Compensatory Mitigation Ratios
|
Resource
Type |
Creation |
Restoration |
Enhancement |
Aquatic
Resource Buffer Preservation |
|
|
Hydrologic |
Vegetative |
||||
|
Bog or Fen |
N/A |
2:1 |
5:1 |
10:1 |
15:1 |
|
Tidal Wetlands |
3:1 |
2:1 |
5:1 |
10:1 |
15:1 |
|
Forested |
1.5:1 |
1.5:1 |
5:1 |
10:1 |
10:1 |
|
Undeveloped Tidal Buffer Zone |
N/A |
2:1 |
5:1 |
10:1 |
3:1 |
|
All Other Jurisdictional Areas |
1.5:1 |
1:1 |
5:1 |
10:1 |
10:1 |
(b)
For permittee-responsible mitigation for stream impacts, the applicant
shall demonstrate that the total amount of compensatory mitigation area meets
or exceeds the total amount of impacted stream area, including the stream
bottom and associated stream banks.
(c) For any project that also requires a federal
permit from the US Army Corps of Engineers (US ACE) under section 404 of the
Clean Water Act, the applicant shall consult with the US ACE relative to
whether additional mitigation will be required in order to
satisfy federal mitigation requirements.
Source. (See Revision Note at part heading for Env-Wt 803) #11000, eff 2-1-16; ss by
#12808, eff 12-15-19 (See Revision Notes #1 and #2 at chapter heading for Env-Wt 800)
Env-Wt
803.09 Alternative
Compensatory Mitigation Proposals.
(a)
An applicant may propose permittee-responsible compensatory mitigation
that does not meet or exceed the ratios listed in Table 800-1 if the
alternative will have greater benefit to water quality, wildlife, aquatic life,
habitat(s) for wildlife or aquatic life, or other functions and values of
wetlands and surface waters identified in RSA 482-A:1 or to one or more of the
following:
(1) Exemplary
natural communities as identified by NHB;
(2) Habitat
that supports rare, threatened, or endangered species, or species of concern,
as identified by NHB or by the WAP; or
(3) Ecologically important lands as designated or
similarly identified by the local river management advisory committee,
municipality, or other state or federal agencies for protection of biodiversity
values such as those listed in (1) or (2), above.
(b)
If the applicant proposes alternative compensatory mitigation for a
project for which a federal permit from the US ACE under section 404 of the
Clean Water Act is also required, the applicant shall consult with the US ACE
relative to whether additional mitigation will be required.
(c)
Alternative compensatory mitigation allowed under (a) or (b), above,
shall meet all other applicable requirements of Env-Wt
800.
Source. (See Revision Note at part heading for Env-Wt 803) #11000, eff 2-1-16; ss by
#12808, eff 12-15-19 (See Revision Notes #1 and #2 at chapter heading for Env-Wt 800)
Env-Wt 803.10 Criteria for Acceptance of In-Lieu Mitigation
Payments.
(a)
An in-lieu mitigation payment shall not substitute for the requirement
to avoid or minimize impacts established in Env-Wt
313.03.
(b)
An applicant wishing to make an in-lieu mitigation payment shall
evaluate available aquatic resource buffer preservation opportunities in
accordance with Env-Wt 804 and provide documentation
and an explanation of how aquatic resource buffer preservation is not
practicable based on the following:
(1) The
property has upland and wetland areas remaining after the development has been
designed, but does not meet or exceed the ratios in Table 800-1 or cannot meet
the buffer requirement in Env-Wt 804.02;
(2) Preservation
was discussed by the municipal conservation commission and acceptance of a
conservation easement was declined as an option, as demonstrated by minutes
from the meeting(s) at which the proposal was considered or a letter signed by
the conservation commission; and
(3) Acceptance
of a conservation easement was declined by other conservation organizations as
cited in Env-Wt 312.03(b)(3), as demonstrated by
written responses from such organizations.
(c)
An applicant for a project that will have permanent impacts to a wetland
shall evaluate available wetland restoration, enhancement, and creation
opportunities in accordance with Env-Wt 805 and
provide documentation and an explanation of what was considered and why
restoration, enhancement, or creation will not produce a valuable and
sustainable jurisdictional area.
(d)
An applicant for a project that will have permanent impacts to a stream
shall evaluate available stream restoration and enhancement opportunities in
accordance with Env-Wt 806 and provide documentation
and an explanation of what was considered and why restoration or enhancement
will not produce a valuable and sustainable jurisdictional area.
(e) The department shall accept a proposal for an
in-lieu mitigation payment if the proposal meets the requirements of (b),
above, and of (c) or (d), above, as applicable, and the mitigation type or
combination of mitigation types listed in Table 800-1 that are available in the
same watershed as the impacts for compensating jurisdictional area losses are
not practicable.
Source. (See Revision Note at part heading for Env-Wt 803) #11000, eff 2-1-16; ss by #12808, eff 12-15-19 (See Revision Notes #1 and #2
at chapter heading for Env-Wt 800)
Env-Wt
803.11 Notification
of Decision on a Proposed In-Lieu Mitigation Payment.
(a)
The department shall determine whether it is appropriate for an
applicant proposing a dredge or fill activity to provide an in-lieu mitigation
payment instead of providing permittee-responsible mitigation by reviewing the
functional assessment and alternatives provided and applying the criteria
specified in Env-Wt 803.10.
(b)
The department shall notify the applicant and the town in which the
project is located in writing of its decision on the
proposal in accordance with statutory
timelines set by RSA 482-A and technical review in Env-Wt
300.
(c)
If the project meets the criteria for an in-lieu mitigation payment, the
notice issued pursuant to (b), above, shall include:
(1) A
calculation of the amount the applicant must pay prior to issuance of a permit
as specified in Env-Wt 807.01; and
(2) A statement
that if the in-lieu mitigation payment is not paid as specified in Env-Wt 807.01, the department will deny the permit.
(d)
If the project does not qualify for an in-lieu mitigation payment, the
notice issued pursuant to (b), above, shall specify the reason(s) and a date by
which the applicant must submit a revised mitigation proposal.
(e)
If an applicant who has been notified that a revised mitigation proposal
is required does not submit a revised mitigation proposal by the deadline
specified in the notice or such longer time period as
agreed to by the applicant and the department
in accordance with RSA 482-A, the department shall deny the application.
Source. (See Revision Note at part heading for Env-Wt 803) #11000, eff 2-1-16; ss by #12808,
eff 12-15-19 (See Revision Notes #1 and #2 at chapter heading for Env-Wt 800)
PART
Env-Wt 804
AQUATIC RESOURCE BUFFER PRESERVATION
Env-Wt
804.01 Location
and Value. An upland buffer
preservation area offered for compensatory mitigation shall:
(a)
Be adjacent to a jurisdictional area that meets or exceeds the functions and values of the
jurisdictional areas to be impacted by the project, as determined through a
functional assessment;
(b)
Benefit the resource to be protected by maintaining water quality,
wildlife habitat, or other functions and values of wetlands and surface waters;
and
(c) Be consistent with the local and regional
land use conservation goals and any applicable river corridor management plans
developed per RSA 483:10.
Source. #8062, eff 3-13-04;
ss by #8341, eff 4-25-05; ss by #8911, eff 6-20-07; ss by #11000, eff 2-1-16; ss by #12808,
eff 12-15-19 (See Revision Note #2 at chapter heading for Env-Wt 800)
Env-Wt 804.02 Dimensions.
(a)
Subject to (b), below, an upland buffer shall be a minimum of 100 feet
wide and contiguous with the protected resource(s).
(b)
For permittee-responsible stream mitigation, an upland riparian buffer
shall be a minimum of 300 feet in length, as measured parallel to the
centerline of the stream, and 100 feet in width, as measured from the limits of
the bank, on both sides of the watercourse.
Source. #8062, eff 3-13-04;
ss by #8341, eff 4-25-05; ss by #8911, eff 6-20-07; ss by #9717, eff 5-25-10;
ss by #11000, eff 2-1-16;
ss by #12808, eff 12-15-19 (See Revision Note #2 at chapter heading for Env-Wt 800)
Env-Wt 804.03 Incorporated
Jurisdictional Areas.
(a)
An area subject to preservation may incorporate a jurisdictional area
provided:
(1) The aquatic
resource buffer partly or entirely surrounds the
jurisdictional area or at least surrounds those undeveloped upland portions on
the preservation parcel; and
(2) Uplands
comprise 50% or more of the minimum total compensatory mitigation area required
under Env-Wt 803.08.
(b)
Jurisdictional areas on the same site as the project that are left
undisturbed as part of meeting the avoidance and minimization requirements
shall not be considered preservation.
Source. #8062, eff 3-13-04;
ss by #8341, eff 4-25-05; ss by #8911, eff 6-20-07; ss by #11000, eff 2-1-16; ss by #12808,
eff 12-15-19 (See Revision Note #2 at chapter heading for Env-Wt 800)
Env-Wt 804.04 Criteria for Evaluation of an Aquatic Resource
Buffer. To propose compensatory
mitigation based on aquatic resource buffer preservation, the applicant shall:
(a)
Submit a functional assessment of each jurisdictional area to be impacted;
(b)
Describe how the property proposed for preservation will be legally protected
in perpetuity;
(c)
If protective measures already exist on the mitigation site(s), identify
the existing protective measures and describe how the proposed additional
measures would provide greater protection of the aquatic resources on the site(s);
(d)
Delineate all wetlands within the proposed compensatory mitigation area
and all contiguous wetlands and surface waters as follows:
(1) For
compensatory mitigation areas comprising 10 acres or more, delineation shall be
completed:
a. By a certified
wetland scientist in accordance with Env-Wt 406.01;
or
b. By
interpretation of aerial photography, published soil surveys, U.S. Fish and
Wildlife Service National Wetland Inventory maps, or other available
information; and
(2) For compensatory mitigation areas comprising
less than 10 acres, delineation shall be completed by a certified wetland
scientist in accordance with Env-Wt 406.01;
(e)
Identify the property or portion of property on a tax map and USGS quad map;
(f)
Identify the legal entity that holds or will hold the conservation
easement, which shall not be the owner in fee of the property;
(g)
Submit a property survey plan in accordance with Env-Wt
808.11 that identifies the boundaries of the compensatory mitigation area;
(h)
Submit a draft legal description of the compensatory mitigation area;
(i) Submit the items required by Env-Wt 311.08;
(j)
Submit color photographs to illustrate important site features with
location(s) noted on the property survey plan, including the location(s) of:
(1) Significant
ecological features;
(2) Existing
impervious surfaces, including but not limited to buildings, structures, and trails;
(3) Wells;
(4) Power lines
or pipelines;
(5) Historic
resources; and
(6) Other improvements
that will be in place at the time of the establishment of the compensatory
mitigation area; and
(k)
Submit a stewardship plan for the property that has been accepted by the
conservation easement grantee.
Source. #8062, eff 3-13-04;
ss by #8341, eff 4-25-05; ss by #8911, eff 6-20-07; ss by #11000, eff 2-1-16; ss by #12808,
eff 12-15-19 (See Revision Note #2 at chapter heading for Env-Wt 800)
PART
Env-Wt 805
WETLAND RESTORATION, ENHANCEMENT, OR CREATION
Env-Wt
805.01 Choice
of Wetland Restoration, Enhancement, or Creation.
(a)
A compensatory mitigation proposal based on wetland restoration,
enhancement, or creation shall replace the types of wetlands to be impacted and
the functions affected and, where practicable, include a contiguous aquatic
resource buffer.
(b)
Wetland restoration, enhancement, or creation proposals shall not be
accepted as compensatory mitigation for sites at which remediation is required
to correct unpermitted activities in jurisdictional areas.
(c)
When considering compensatory mitigation based on wetland restoration,
enhancement, or creation, the applicant shall:
(1) Give
preference to wetland restoration over wetland enhancement and wetland creation;
(2) Consider
wetland creation only with input from the US ACE and EPA where:
a. Impacts to
upland forest for wetland creation is minimized and avoided, except where
necessary to establish appropriate landscape context such as vernal pool creation;
b. The specific
area of creation is not also being used as part of the project, such as for
construction of a stormwater detention feature; and
c. The area is
not directly adjacent to developed areas; and
(3) Consider
vernal pool creation only with input from the US ACE and EPA where:
a. The
hydrology of the proposed creation site includes both short and intermediate hydroperiods;
b. Inoculation
of created vernal pool areas with vernal pool organisms from impact areas is possible;
c. The use of
natural substrate and plant structure from impacted locations is used to
provide appropriate pool structure, egg attachment sites, and seed sources; and
d. Non-breeding habitat is located adjacent to
created vernal pool areas for the long-term viability of potential pools as
described in the US ACE Vernal Pool Best Management Practices (BMPs), January
2015, available as noted in Appendix B.
Source. #8062, eff 3-13-04;
ss by #8341, eff 4-25-05; ss by #8911, eff 6-20-07; ss by #11000, eff 2-1-16;
ss by #11000, eff 2-1-16;
ss by #12808, eff 12-15-19 (See Revision Note #2 at chapter heading for Env-Wt 800)
Env-Wt 805.02 Selection
Criteria. To propose compensatory
mitigation based on wetland restoration, enhancement, or creation, the
applicant shall:
(a)
Submit the report and plan required by Env-Wt 803.01;
(b)
Include connections to wetlands, surface waters, or associated upland
wildlife and vegetated corridors to enhance the wetland or surface water use
and colonization by native flora and fauna;
(c)
Identify the source of wetland hydrology for the proposed mitigation
area to confirm that the site has a suitable geomorphic setting for aquatic
resource restoration, enhancement, or creation;
(d)
Explain how the proposal creates vegetative, soil, and hydrologic
conditions or land connections that will produce the desired wetland functions
and values to be restored, enhanced, or created;
(e)
Provide wetland micro and macro topography in the proposal to achieve
hydrologic diversity;
(f)
Identify the relationship of the proposed mitigation site to any
jurisdictional area(s) in the immediate vicinity, the proximity to existing
infrastructure and adjacent properties, and whether any lands are protected in
the vicinity of the mitigation site(s);
(g)
For projects where permission is sought from the US Army Corps of
Engineers under the Clean Water Act, provide documentation on how the proposed
wetland restoration, enhancement, or creation site will not be affected by
anticipated secondary and cumulative impacts from the construction site; and
(h) For restoration and enhancement proposals,
explain the history of the mitigation project area, to the extent known.
Source. #8062, eff 3-13-04;
ss by #8341, eff 4-25-05; ss by #8911, eff 6-20-07; ss by #11000, eff 2-1-16; ss by #12808,
eff 12-15-19 (See Revision Note #2 at chapter heading for Env-Wt 800)
Env-Wt 805.03 Plans for Wetland Restoration, Enhancement, or
Creation Projects. The applicant for a project to restore, enhance, or
create wetlands shall include the following in the plans required by Env-Wt 803.01:
(a)
Existing and proposed grades, with typical and unique cross sections
with specific locations where clarity is needed showing:
(1) Predicted
water fluctuations; and
(2) Proposed
wetland cover types for the project area;
(b)
Construction procedures, sequence, and timing;
(c)
A planting proposal, with preference given to native wetland plants and
natural communities as follows:
(1) Plant
species with scientific names and quantities provided;
(2) Source of
planting materials or whether the plan relies on natural re-vegetation;
(3) Plant stock
site and zones of predicted plant occurrence;
(4) Plant
survival goals;
(5) The
proposed locations of native plant stock and the rate and type of seeding;
(6) When and
where seeding or planting will take place; and
(7) Notation of dead snags, tree stumps, or logs
per acre, where appropriate, to provide structure and cover for wildlife and
food chain support;
(d)
Documentation of existing and proposed soils as follows:
(1) The
existing soils on the proposed project site;
(2) The source
of soils to be placed on the site;
(3) The likely
seed bank composition of soils;
(4) The depth
of proposed growing medium; and
(5) The soil
properties such as texture and organic content;
(e)
Erosion control notes and details to minimize or prevent sediment from
entering adjacent, undisturbed wetlands or surface waters;
(f)
Invasive species in the vicinity;
(g)
If applicable, an invasive species control plan; and
(h) A list of activities that will be allowed and
not allowed within the project area.
Source. #8911, eff 6-20-07;
ss by #11000, eff 2-1-16;
ss by #12808, eff 12-15-19 (See Revision Notes #1 and #2 at chapter heading for
Env-Wt 800)
PART
Env-Wt 806
STREAM RESTORATION OR ENHANCEMENT
Env-Wt
806.01 Stream
Restoration or Enhancement.
(a)
A compensatory mitigation proposal based on stream restoration or
enhancement shall consider the types of stream(s) impacted and, where
practicable, include a contiguous upland buffer in accordance with Env-Wt 804.
(b)
Stream restoration or enhancement proposals shall not be accepted as
compensatory mitigation for sites at which remediation is required to correct
unpermitted activities in jurisdictional areas.
Source. #11000, eff 2-1-16; ss by #12808,
eff 12-15-19 (See Revision Notes #1 and #2 at chapter heading for Env-Wt 800)
Env-Wt
806.02 Goals;
Types of Projects.
(a)
Any proposed compensatory mitigation based on stream restoration or
enhancement shall be designed to meet as many of the following goals as
practicable:
(1) Increase or
restore native ecosystem productivity and biodiversity;
(2) Increase or
restore sediment, nutrient, and particulate transport and retention/recycling dynamics;
(3) Restore the
natural hydrologic regime;
(4) Support or
improve migration and movement of aquatic biota;
(5) Increase or
restore the availability or accessibility of upstream aquatic habitats;
(6) Increase habitat
complexity of the stream ecosystem;
(7) Increase
sediment and nutrient retention in riparian areas and floodplains;
(8) Improve
thermal regimes, such as adding riparian vegetation to provide shade;
(9) Improve
water quality;
(10) Improve
access to refuge and reproductive habitat for aquatic organisms;
(11) Reduce the
likelihood of water surges and flash flooding; and
(12) Restore a
dynamic channel boundary so as to allow a natural
migration of the channel within the floodplain.
(b)
The applicant shall consider the following types of projects:
(1) Upgrading
or removing existing culverts;
(2) Restoring
or enhancing riparian and floodplain vegetation;
(3) Re-establishing
connections to floodplains and side channels;
(4) Removing
dams or culverts that are effectively functioning as dams;
(5) Removing rip-rap and concrete banks and channels and revegetate;
(6) Improving
stormwater storage and processing;
(7) Enhancing
or restoring riparian buffers;
(8) Installing
coarse woody material in the stream or along its banks, or both;
(9) Using low
impact development (LID) technology such as pervious surfaces, rain gardens,
and filter strips; and
(10) Removing pavement and other impervious
surfaces.
Source. #11000, eff 2-1-16;
ss by #12808, eff 12-15-19 (See Revision Notes #1 and #2 at chapter heading for
Env-Wt 800)
Env-Wt
806.03 Information
Required for Proposed Stream Mitigation Project. An applicant proposing a stream restoration
or enhancement mitigation project shall submit the following, as applicable, in
the plan and report required by Env-Wt 803.01:
(a)
The length of the stream channel to be restored or enhanced, in linear feet;
(b)
Information on the location of the stream impact or mitigation plan in
relation to critical habitats and populations identified in the WAP, and
whether any lands are protected in the vicinity of the mitigation site(s);
(c)
Information on the suitability of the mitigation site for cold water
fisheries habitat, access to feeding, spawning, or natural dispersal for
fisheries or wildlife;
(d)
Proposed improvements for aquatic organism passage, geomorphic
compatibility, or hydraulic capacity;
(e)
Proposed improvements to restore or enhance riparian or associated
aquatic resource function(s), including the percent of the area within 100 feet
laterally in an outward direction from each stream bank along the length of the
stream bank that will be restored or otherwise improved;
(f)
A description of the hydrology necessary to support the desired stream
type, including stream flow, location in the watershed, watershed size, water
source, and salinity for tidal water; and
(g)
A description of the existing versus proposed substrate type, source
material, and material size.
Source. #11000, eff 2-1-16; ss by #12808,
eff 12-15-19 (See Revision Notes #1 and #2 at chapter heading for Env-Wt 800)
Env-Wt
806.04 Plans
for Stream Restoration and Enhancement Projects. The applicant shall include the following in
the report and plan required by Env-Wt 803.01:
(a)
Existing and proposed channel forms, including both cross section and profile;
(b)
Channel width and length of reach;
(c)
Sediment transport model and the reference reach;
(d)
Construction procedures, sequence, and timing;
(e)
A planting proposal, with preference given to native plants and natural
communities as required in Env-Wt 805.03(c);
(f)
Information on the floodplain, including the level of connectivity
between the stream and the floodplain, the permanence of coarse woody material
in the floodplain, and the width of the floodplain;
(g)
Erosion control specifications to prevent sediment from entering
adjacent, undisturbed wetlands or surface waters;
(h)
If any invasive plant species are within 100 feet of each stream bank,
identification of the type and location of the species and an invasive species
control plan;
(i) Photographs of the channel, banks, and side
slopes; and
(j) A list of activities that will be allowed and
not allowed within the mitigation area.
Source. #11000, eff 2-1-16; ss by #12808,
eff 12-15-19 (See Revision Notes #1 and #2 at chapter heading for Env-Wt 800)
PART
Env-Wt 807
REQUIREMENTS UPON APPROVAL OF MITIGATION PLAN
Env-Wt
807.01 Submittal
of In-Lieu Mitigation Payment.
(a)
For a project for which the department has notified the applicant of the
acceptance of a proposed in-lieu mitigation payment as specified in Env-Wt 803.11(c), the department shall not issue the permit
until the applicant has remitted the full amount of the in-lieu mitigation
payment as specified in the notice.
(b)
If the applicant does not remit the full amount of the in-lieu
mitigation payment within 120 days of the date of the notice or such longer
time as is agreed to by the applicant and the department, the department shall
deny the application.
(c)
The department shall deposit all in-lieu mitigation payments into the
aquatic resource compensatory mitigation fund established by RSA 482-A:29 as
follows:
(1) For each
payment deposited, the department shall credit the payment to the service area
that contains the jurisdictional area(s) impacted by the project;
(2) The
department shall account for payments made for stream impact projects
separately from payments made for wetland impact projects;
(3) For a
project that impacts jurisdictional area(s) in more than one service area, the
department shall allocate the payment among the service areas in proportion to
impacts; and
(4) For a
project having both stream impacts and wetland impacts, the department shall
allocate the payment to wetland impacts and stream impacts in proportion to
impacts.
Source. #8062, eff 3-13-04;
ss by #8341, eff 4-25-05 (See Revision Note at chapter heading of Env-Wt 800); ss by #8911, eff 6-20-07; ss by #11000, eff 2-1-16
(formerly Env-Wt 806.01); ss by #12808,
eff 12-15-19 (See Revision Note #2 at chapter heading for Env-Wt 800)
Env-Wt 807.02 Notification of Recorded Conservation Interest.
(a)
After the department has issued a permit in accordance with the wetlands
rules and prior to the conservation interest being recorded, the natural resources
existing on the conservation easement parcel shall not be removed, disturbed,
or altered without prior written approval of the department and the easement
holder.
(b)
After the department has issued a permit in accordance with the wetlands
rules and prior to work commencing on a project for which the mitigation plan
requires a conservation interest to be acquired, the permittee shall:
(1) If the conservation interest is an easement,
obtain the signature of the grantee on the document conveying the interest for
each parcel to be preserved;
(2) Record each document that conveys a
conservation interest for each parcel to be preserved at the registry of deeds
for the county in which the parcel is located;
(3) Submit a
copy of each recorded document to the department; and
(4) Submit a
digitized polygon file, if available, to be incorporated into the department’s
geographic information system (GIS) conservation lands layer for the location
of compensatory mitigation parcels.
(c)
Within 60 days after issuance of the permit, the permittee shall submit
verification that the compensatory mitigation area has been marked by permanent
monuments and signs indicating the location of the area.
Source. #8062, eff 3-13-04;
ss by #8341, eff 4-25-05; ss by #8911, eff 6-20-07; ss by #11000, eff 2-1-16
(formerly Env-Wt 806.02); ss by #12808,
eff 12-15-19 (See Revision Note #2 at chapter heading for Env-Wt 800)
Env-Wt 807.03 Notification
of Construction Completion. Within
60 days of completing a mitigation project that included restoration,
enhancement, or creation of wetlands or the restoration or enhancement of a
stream, or both, the applicant shall:
(a)
Submit a signed letter specifying the date of completion and the
anticipated dates of submittal of the annual monitoring reports; and
(b)
Submit a post-construction monitoring report, documenting the conditions
of the restored, enhanced, or constructed wetland or restored or enhanced
stream.
Source. #8062, eff 3-13-04;
ss by #8341, eff 4-25-05 (See Revision Note at chapter heading of Env-Wt 800); ss by #8911, eff 6-20-07; ss by #11000, eff 2-1-16
(formerly Env-Wt 806.03); ss by #12808, eff 12-15-19 (See Revision Note #2 at chapter
heading for Env-Wt 800)
Env-Wt 807.04
Monitoring Report.
(a)
The permittee responsible for a mitigation project shall submit
monitoring reports to the department as specified in the mitigation monitoring
plan required by Env-Wt 803.04.
(b)
The permittee also shall submit a final monitoring report.
Source. #11000, eff 2-1-16; ss by #12808,
eff 12-15-19 (See Revision Notes #1 and #2 at chapter heading for Env-Wt 800)
Env-Wt 807.05 Adjustments to Mitigation Monitoring Plan.
(a)
If the mitigation project has met or exceeded its performance standards
in fewer than 5 growing seasons, the permittee may request the department to
waive subsequent monitoring by submitting the following to the department in
writing:
(1) A statement that all performance standards
have been met; and
(2) Documentation to support the statement,
including photo documentation and certification from the certified wetland
scientist who conducted the monitoring that the mitigation project has met its
performance standards.
(b)
The department shall waive implementation of the remaining monitoring
plan if the information provided by the permittee pursuant to (a), above,
demonstrates that the performance standards have been met or exceeded and that
continued monitoring is not needed.
(c)
The permittee may request the department to reduce subsequent monitoring
if the mitigation project has achieved some performance standards sooner than
anticipated, by submitting the following to the department in writing:
(1) An explanation, including photo
documentation, of the extent to which the performance standards have been met;
(2) A description of the proposed revised
monitoring plan; and
(3) Certification from the certified wetland
scientist who is conducting the monitoring that the mitigation project has met
some of its performance standards sooner than anticipated and that the revised
monitoring proposal is sufficient to ensure that the remaining performance
standards are likely to be met.
(d) The department shall approve a reduced
monitoring plan if the information provided by the permittee pursuant to (c),
above, demonstrates that based on the extent to which the mitigation project
has exceeded its performance standards, the reduced plan appears sufficient to
ensure that all performance standards will be met.
(e) If all performance standards have not been
met within the time period specified in the monitoring
plan, the permittee shall extend the monitoring.
Source. #8762, INTERIM, eff 11-21-06, EXPIRED: 5-20-07
New. #8911, eff 6-20-07;
ss by #11000, eff 2-1-16 (formerly Env-Wt 806.04); ss by #12808, eff
12-15-19 (See Revision Notes #1 and #2 at chapter heading for Env-Wt 800)
Env-Wt 807.06 Implementation of Remediation Plan.
(a)
Upon being notified by the certified wetland scientist or qualified
professional who is monitoring the mitigation project that the mitigation
project is not likely to achieve its objectives after the number of growing
seasons specified in the monitoring plan, the permittee shall:
(1) Submit a
remediation plan to the department within 45 days of the notification;
or
(2) Request the
department to accept an in lieu mitigation payment to
compensate for the portions of the project that failed to meet the performance
standards.
(b)
A remediation plan submitted pursuant to (a)(1), above, shall identify:
(1) The
problem(s) limiting the success of the mitigation site;
(2) Measures
which need to be taken to address the problem(s); and
(3) A time
schedule on which the permittee will implement the corrective measures.
(c)
The department shall approve the proposed remediation plan if the
department determines that the plan has a reasonable probability, within 3 full
growing seasons following implementation of the remediation plan, of resolving
the problem(s) that have caused the mitigation project to be unsuccessful.
(d)
Following department approval of the remediation plan, the permittee
shall implement the plan and submit reports following each of the next 3 full
growing seasons to demonstrate the success of the remedial measures.
Source. #8911, eff 6-20-07;
ss by #11000, eff 2-1-16 (formerly Env-Wt 806.05); ss by #12808, eff
12-15-19 (See Revision Notes #1 and #2 at chapter heading for Env-Wt 800)
PART Env-Wt
808 AQUATIC RESOURCE COMPENSATORY
MITIGATION FUND
Env-Wt 808.01 Use of Aquatic Resource Compensatory Mitigation
Fund. Costs that are eligible under
RSA 482-A:29, I, for funding from the ARM Fund shall be as follows:
(a)
Development of final restoration, enhancement, or creation plans;
(b)
Construction costs for restoration, enhancement, or creation such as
site clearing and excavation, construction management, consulting fees, permit
costs, grading and soil augmentation, disposal costs of excavated materials,
planting, and monitoring and maintenance of restoration, enhancement, or
creation sites to reduce risk of failure;
(c)
Acquisition of land for the protection of mitigation sites in perpetuity
and associated costs including property surveys, appraisals, closing costs, and
subdivision fees;
(d)
Acquisition of conservation interests after a qualified grantee has been
identified;
(e)
Acquisition of legal services related to the protection of land(s) in perpetuity;
(f)
Stewardship of a conservation interest in accordance with Env-Wt 808.16, including development of a stewardship plan for
the land that is subject to the conservation interest; and
(g)
Other aquatic resource improvement or protection projects, such as water
quality improvement projects, tidal wetland restoration projects, dam removal
projects, stream or river restoration projects, or activities that provide
habitat improvement including culvert replacement or removal.
Source. #8762, INTERIM, eff 11-21-06, EXPIRED: 5-20-07
New. #8911, eff 6-20-07;
ss by #11000, eff 2-1-16 (formerly Env-Wt 807.02); ss by #12808,
eff 12-15-19 (See Revision Notes #1 and #2 at chapter heading for Env-Wt 800)
Env-Wt 808.02 Identification of Eligible Projects.
(a)
The department shall announce a request for pre-proposals for proposed
projects in a service area, in consultation with the site selection committee
per Env-Wt 808.18(b)(4), at least once every 2 years.
(b)
The department shall include in the announcement issued under (a),
above, the schedule for submitting pre-proposals, processing pre-proposals,
submitting applications, and processing applications.
(c)
Any person wishing to obtain funding for a project from the ARM Fund
shall complete and submit a pre-proposal as specified in Env-Wt 808.03 by the deadline for pre-proposals specified in
the announcement.
(d)
Prior to the deadline for completing the processing of pre-proposals
specified in the announcement, the department shall:
(1) Review each
pre-proposal received to determine whether the proposed project is eligible for
funding and in which service area(s) the proposed project is located;
(2) Consult
with the U.S. Army Corps of Engineers relative to the proposed projects; and
(3) Notify the applicant of whether the proposed
project is eligible for funding and provide comments to the applicant to
consider prior to submitting an ARM Fund application.
(e) To have a project considered for funding, an
applicant who has been notified pursuant to (c)(3), above, that the proposed
project is an eligible project shall complete an ARM Fund application in
accordance with Env-Wt 808.04 and submit it to the
department for review by the deadline for applications specified in the
announcement.
Source. #8762, INTERIM, eff 11-21-06, EXPIRED: 5-20-07
New. #8911, eff 6-20-07;
ss by #11000, eff 2-1-16 (formerly Env-Wt 807.03); ss by #12808, eff 12-15-19 (See Revision Notes #1 and #2 at
chapter heading for Env-Wt 800)
Env-Wt 808.03 Requirements for ARM Fund Pre-Proposals. Any person who wishes to request funding from
the ARM Fund shall submit to the department:
(a)
The following information on an ARM Fund pre-proposal form obtained from
the department that has been signed as specified in Env-Wt
808.05:
(1) A short
title for the proposed project;
(2) The
location of the proposed project by street address, municipality, and service area;
(3) Contact
information, including the name of the applicant and the name, daytime
telephone number, and email address, if any, of a contact individual for the applicant;
(4) The name
and role of each other entity that will participate in or otherwise contribute
to the proposed project; and
(5) The total
grant amount requested, the amount and source of matching funds, and the
estimated total project cost;
(b)
A USGS topographic map on which the following areas are clearly marked:
(1) The property or portion(s) of the property to
be acquired or otherwise protected through a conservation interest with the
requested funds, if applicable;
(2) The property or portions of the property to
be considered for wetland restoration, enhancement, or creation, or for stream
restoration or enhancement if applicable; and
(3) Any other
protected lands within one mile of the outer boundaries of the area identified
pursuant to (1) or (2), above;
(c)
A description of the project in not more than 1,000 words that includes:
(1) The
project’s objectives;
(2) A brief
summary of how the project meets the ARM Fund criteria specified in Env-Wt 808.20;
(3) The tasks
required to complete the project and a proposed timeline for completing the tasks;
(4) The
proposed budget to complete the project; and
(5) The proposed
results to be achieved; and
(d) A second plan or map of the areas identified
pursuant to (b), above, such as one from the WAP, on which critical habitats
and populations of the state's species of conservation and management concern
are clearly delineated.
Source. #11000, eff 2-1-16; ss by #12808, eff 12-15-19 (See Revision Notes #1
and #2 at chapter heading for Env-Wt 800)
Env-Wt
808.04 Requirements
for ARM Fund Applications. To
request funding for an eligible project, the applicant shall submit the
following information to the department on or with an ARM Fund application form
obtained from the department that has been signed as specified in Env-Wt 808.05:
(a)
Information to identify the project and applicant, as follows:
(1) A name for
the proposed project;
(2) The
location of the proposed project by street address, municipality, and service area;
(3) The name
and mailing address of the applicant and the name, daytime telephone number,
and email address, if any, of a contact individual for the applicant; and
(4) The total
grant amount requested, the amount and source of matching funds, and the
estimated total project cost;
(b)
A USGS topographic map marked as required by Env-Wt
808.03(b);
(c)
A description of the property(ies) that
includes:
(1) The
location and type of all structures;
(2) Existing
impoundments, if any;
(3) Existing disturbances,
if any; and
(4) Known or
potential contamination sources as identified in the department’s GIS, if any;
(d)
A functional assessment or a description of the aquatic resource
functions and values of the property(ies) and overall
conservation value and identification of the specific primary functions and
values and how these functions and values are being protected, restored,
enhanced, or constructed by the proposed project;
(e)
A table summarizing the information provided pursuant to (d), above,
which for each aquatic resource lists the resource type, size, and functions;
(f)
A map, at a scale that ensures that all details are legible, on which
are identified all developed and undeveloped parcels within one-half mile of
the outer boundaries of the area that would be restored, enhanced, created, or
protected by the proposed project;
(g)
A map of the property, at a scale that ensures that all details are
legible, on which are identified the following:
(1) Wetlands,
surface waters, fields, and forest;
(2) Any structures;
(3) All
utilities and wells;
(4) All roads
or trails;
(5) All
easements or rights-of-way; and
(6) Gravel pits
or other disturbed areas;
(h)
For both the proposed project property and the mitigation property, the
number of confirmed vernal pools and the number of potential vernal pools;
(i) For a wetlands restoration, enhancement, or
creation project:
(1) A
description of the work to be completed;
(2) The total
area, in acres, proposed for restoration;
(3) The total
area, in acres, proposed for enhancement;
(4) The total
area, in acres, proposed for creation;
(5) The total
area, in acres, of upland enhancement proposed, if any; and
(6) A written
explanation of how the project meets the criteria specified in Env-Wt 808.07;
(j)
For a stream restoration or enhancement project:
(1) A
description of the work to be completed;
(2) The total
linear feet of stream on the property;
(3) The total
linear feet of in-stream restoration or enhancement proposed;
(4) The percent
of the length of stream that has a 100-foot wooded zone on both sides of the
stream and the percent of each area that is upland; and
(5) A written
explanation of how the project meets the criteria specified in Env-Wt 808.07;
(k)
For an upland preservation project:
(1) The total
acreage of the land proposed for protection and the acreage of any included
jurisdictional area(s); and
(2) A written
explanation of how the project meets the criteria specified in Env-Wt 808.08;
(l)
For other projects, an explanation of why the project is eligible under
Env-Wt 808.01;
(m)
A signed and dated statement from each landowner that:
(1) Affirms the
landowner’s willingness to have the restoration, enhancement, or creation work
performed or willingness to negotiate the acquisition of the properties, as applicable;
(2) Commits the
landowner(s) to not selling or otherwise conveying or committing to sell or
otherwise convey the property covered by the application except to the
applicant for 120 days;
(3) Commits the
landowner(s) to allowing inspection, survey, and appraisal of the property
within 120 days from the date of receipt of a copy of the application by the department;
(4) Specifies
the price at which the landowner will sell the property, which information
shall be treated as confidential under the provisions of RSA 91-A:5, IV and
subject to disclosure only with the consent of the landowner until the
department has selected the application for funding; and
(5) Identifies
all liens and encumbrances; and
(n)
A budget that includes a complete list of itemized costs and an
anticipated time line for expenditures.
Source. #8762, INTERIM, eff 11-21-06, EXPIRED: 5-20-07
New. #8911, eff 6-20-07;
ss by #11000, eff 2-1-16 (formerly Env-Wt 807.04); ss by #12808, eff
12-15-19 (See Revision Notes #1 and #2 at chapter heading for Env-Wt 800)
Env-Wt
808.05 Signatures
Required for Pre-Proposals and Applications.
(a)
If the applicant is an individual, the applicant shall sign and date the
pre-proposal and the application.
(b)
If the applicant is an organization or other legal entity, the official
of the applicant who has been authorized to sign the pre-proposal or
application shall sign and date the document and print or type his or her name
and title on the document.
(c)
A signature provided under (a) or (b), above, shall constitute
certification that:
(1) The
information contained in or otherwise submitted with the application is true,
complete, and not misleading to the best of the applicant’s knowledge and belief;
(2) The
applicant understands that:
a. The submission
of false, incomplete, or misleading information is grounds for denying the
application or revoking any award of ARM funds that is made based on such
information; and
b. The
applicant is subject to the penalties for falsification in official matters
specified RSA 641 or any successor New Hampshire statute.
Source. #11000, eff 2-1-16; ss by #12808, eff 12-15-19 (See Revision Notes #1 and
#2 at chapter heading for Env-Wt 800)
Env-Wt 808.06 Processing of ARM Fund Applications.
(a)
The department shall review each application for conformance with Env-Wt 808.04 and to determine whether the project meets the
criteria of Env-Wt 808.07 or Env-Wt
808.08, as applicable, in accordance with the schedule established under Env-Wt 808.02(b).
(b)
The department shall notify the applicant and the municipality(ies) in which the land is located in
writing of its decision on the application.
If the application is determined to not be acceptable for funding, the
notice shall specify the reason(s) for the determination.
Source. #8762, INTERIM, eff 11-21-06, EXPIRED: 5-20-07
New. #8911, eff 6-20-07;
ss by #11000, eff 2-1-16 (formerly Env-Wt 807.05); ss by #12808,
eff 12-15-19 (See Revision Notes #1 and #2 at chapter heading for Env-Wt 800)
Env-Wt 808.07 Eligibility Criteria for Wetland Restoration,
Enhancement, or Creation Projects and Stream Restoration or Enhancement
Projects. A project to restore,
enhance, or create wetlands or to restore or enhance a stream shall be eligible
for funding from the ARM Fund when all of the
following conditions are met:
(a)
The applicant demonstrates that:
(1) Rights to
access the mitigation project site have been or will be acquired;
(2) The
mitigation project site is on a site where functions to be replaced or enhanced
are sustainable and free of known and potential contamination sources; and
(3) All needed
local, state, and federal authorizations or permits to conduct the mitigation
work have been applied for, will be applied for, or have already been acquired;
and
(b) The applicant presents a budget to accomplish
the proposed project’s stated objectives in the projected time frame, including
long-term management expenses, using good-faith, realistic estimates of costs.
Source. #8762, INTERIM, eff 11-21-06, EXPIRED: 5-20-07
New. #8911, eff 6-20-07;
ss by #11000, eff 2-1-16 (formerly Env-Wt 807.06); ss by #12808,
eff 12-15-19 (See Revision Notes #1 and #2 at chapter heading for Env-Wt 800)
Env-Wt 808.08 Eligibility Criteria for Land Protection Projects. A project to acquire a conservation interest
shall be eligible for funding from the ARM Fund when all of
the following conditions are met:
(a)
The applicant is a political subdivision, a governmental agency, or a
non-profit, 501(c)(3) organization having land conservation as a principal
mission, or provides a signed and dated statement from such an entity stating
the willingness of the entity to negotiate the proposed acquisition;
(b)
The conservation interest to be acquired meets the criteria specified in
Env-Wt 804.01 and Env-Wt 804.03;
(c)
The conservation interest to be acquired is in undeveloped land that is
free of known contamination;
(d)
The conservation interest to be acquired is in land that is not already
permanently protected and is not currently owned by the applicant;
(e)
The resources within the conservation interest area are under threat of
destruction or adverse modifications by reasonably foreseeable activities; and
(f)
The conservation interest to be acquired will be held by a grantee that
meets the criteria specified in Env-Wt 312.04(c).
Source. #8762, INTERIM, eff 11-21-06, EXPIRED: 5-20-07
New. #8911, eff 6-20-07;
ss by #11000, eff 2-1-16 (formerly Env-Wt 807.07); ss by #12808, eff
12-15-19 (See Revision Notes #1 and #2 at chapter heading for Env-Wt 800)
Env-Wt 808.09 Requirements upon Determination of Eligibility.
(a)
If a project is selected to receive funding for the restoration,
enhancement, or creation of wetlands or the restoration or enhancement of a
stream, the applicant shall submit the following to the department prior to the
funds being awarded:
(1) An
environmental site assessment prepared in accordance with Env-Wt 808.10(b) through (d), if required pursuant to Env-Wt 808.10(a);
(2) A property
survey prepared in accordance with Env-Wt 808.11;
(3) Detailed
plans on the mitigation project site in accordance with Env-Wt
805 or Env-Wt 806, as applicable; and
(4) A detailed
schedule for mitigation work to be carried out.
(b)
If a project to conduct wetland restoration, enhancement, or creation or
stream restoration or enhancement is awarded funding, the applicant shall:
(1) Select a
qualified contractor using the procurement process prescribed by RSA 21-I:22,
IV-VII;
(2) Execute the
mitigation plan in accordance with the schedule approved by the department;
(3) Adhere to
ARM Fund contract conditions;
(4) Provide
ongoing monitoring reports in accordance with Env-Wt
807.04; and
(5) Provide a
plan for the on-going maintenance or management of the mitigation area(s), if
needed.
(c)
If a project is selected to receive funding to acquire a conservation
interest, the applicant shall submit the following to the department prior to the
funds being awarded:
(1) An
environmental site assessment prepared in accordance with Env-Wt 808.10(b) through (d), if required pursuant to Env-Wt 808.10(a);
(2) A property
survey prepared in accordance with Env-Wt 808.11;
(3) An
appraisal prepared in accordance with Env-Wt 808.12;
(4) A title examination and, if necessary, an
opinion of title prepared in accordance with Env-Wt
808.13; and
(5) A baseline
documentation report in accordance with Env-Wt
808.15.
(d)
If a project to acquire a conservation interest is awarded funding, the
applicant shall:
(1) Execute the
land transaction in accordance with Env-Wt 808.17;
(2) Record the
deed and survey, if applicable, in accordance with Env-Wt
808.17;
(3) Adhere to
ARM Fund contract conditions; and
(4) Provide a
stewardship plan for the property in accordance with Env-Wt
808.16.
Source. #8762, INTERIM, eff 11-21-06, EXPIRED: 5-20-07
New. #8911, eff 6-20-07;
ss by #11000, eff 2-1-16 (formerly Env-Wt 807.08); ss by #12808, eff
12-15-19 (See Revision Notes #1 and #2 at chapter heading for Env-Wt 800)
Env-Wt
808.10 Environmental Site Assessment Requirements.
(a) The applicant shall submit an environmental
site assessment for any property that is the subject of a request for funding
from the ARM Fund and that, based on information in the department’s GIS or a
site walk performed by the department, contains known or potential sources of
contamination.
(b) An environmental site assessment shall be
performed by an environmental consultant who has at least 5 years’ experience
in preparing site assessments.
(c) An environmental site assessment shall
include the following:
(1) A history of land usage;
(2) A description of the site inspection;
(3) A review of all department records relating
to site investigations or other environmental assessments for all properties
located within 1,000 feet of the property;
(4) A description of the review conducted
pursuant to (3), above, including the date of the review and who conducted the review;
(5) A description of the findings from any files
reviewed pursuant to (3), above; and
(6) An opinion by the consultant that there are
no contamination concerns for the property(ies)
proposed for protection.
(d) The applicant shall submit the environmental
site assessment to the department upon completion.
Source. #8762, INTERIM, eff 11-21-06, EXPIRED: 5-20-07
New. #8911, eff 6-20-07;
ss by #11000, eff 2-1-16 (formerly Env-Wt 807.09); ss
by #12808, eff 12-15-19 (See Revision Notes #1 and #2 at chapter heading for
Env-Wt 800)
Env-Wt 808.11 Survey Requirements.
(a)
If an accurate survey does not already exist for property that is the
subject of a request for funding from the ARM Fund, the applicant shall obtain
a property survey after the applicant receives notification from the department
that the applicant’s application for funding has been selected and prior to the
funding being provided.
(b)
The applicant shall provide the department with 2 paper copies, a copy
on MylarTM or equivalent substrate
suitable for recording at the registry of deeds, and a digitized polygon file
of the standard property survey for the property that is the subject of the
proposed project.
(c)
A New Hampshire licensed surveyor shall perform a standard property
survey in accordance with the standards specified in Lan 503.03 – Lan 503.10 or
successor rules.
(d)
The turning points of the boundaries shall be marked with permanent
monuments and the boundary lines shall be blazed or painted so that they can be located in the field.
(e)
The survey plan shall include:
(1) The
property boundaries and acreage; and
(2) The method
and accuracy of the survey.
Source. #8762, INTERIM, eff 11-21-06, EXPIRED: 5-20-07
New. #8911, eff 6-20-07;
ss by #11000, eff 2-1-16 (formerly Env-Wt 807.10); ss by #12808, eff
12-15-19 (See Revision Notes #1 and #2 at chapter heading for Env-Wt 800)
Env-Wt
808.12 Appraisal
Requirements.
(a)
The applicant requesting funding from the ARM Fund for acquisition of a
conservation interest shall obtain an appraisal or an updated appraisal after
the applicant has received notification from the department that the
applicant’s application for funding has been selected and prior to the funding
being provided.
(b)
If an appraisal has not been completed within 120 days of the
notification, the money shall revert back to the ARM
fund.
(c)
An appraisal shall be conducted for each property included in the
proposed project, based on the terms of the proposed conservation interest
instrument and the survey performed in accordance with Env-Wt
808.11.
(d)
In order for the appraisal to be accepted as a determination of the fair
market value of the conservation interest, the appraisal shall be certified by
the individual who performed the appraisal that it was conducted in accordance
with the Uniform Standards of Professional Appraisal Practice established by
The Appraisal Foundation.
(e)
The applicant shall submit the appraisal to the department.
Source. #8762, INTERIM, eff 11-21-06, EXPIRED: 5-20-07
New. #8911, eff 6-20-07;
ss by #11000, eff 2-1-16 (formerly Env-Wt 807.11); ss by #12808, eff
12-15-19 (See Revision Notes #1 and #2 at chapter heading for Env-Wt 800)
Env-Wt 808.13 Title Examination Requirements.
(a)
The applicant for funding from the ARM Fund for acquisition of a
conservation interest shall obtain a title examination or an updated title
examination after the applicant has received notification from the department
that the applicant’s application for funding has been selected and prior to the
funding being provided.
(b)
The title examination shall be conducted for each property included in
the proposed project.
(c)
In order for the title examination to be accepted as determinative that
there is clear and marketable title to the property, the title examination
shall be certified by the attorney who examined the title that the work was
conducted in accordance with the “New Hampshire Title Examination Standards” of
the New Hampshire Bar Association.
Source. #8762, INTERIM, eff 11-21-06, EXPIRED: 5-20-07
New. #8911, eff 6-20-07;
ss by #11000, eff 2-1-16 (formerly Env-Wt 807.12); ss by #12808, eff
12-15-19 (See Revision Notes #1 and #2 at chapter heading for Env-Wt 800)
Env-Wt
808.14 Conservation
Interest Instrument Requirements.
(a)
Each conservation interest instrument shall:
(1) Uphold the
conservation purposes of the transaction in perpetuity;
(2) Protect the
quality of wetlands and surface water resources associated with the property;
(3) Safeguard
the environmental values of the property that are dependent on aquatic
resources; and
(4) Convey an
interest to the State of New Hampshire that allows the state to enforce the
conditions and restrictions of the conservation interest instrument and to
recover the costs of such enforcement from the easement holder or property
owner, or both.
(b)
Each conservation interest instrument shall contain, at a minimum, the
following restrictions:
(1) No industrial
or commercial activities or improvements shall occur on the property except in
conjunction with any water supply, agricultural, forestry, or outdoor
recreational activities that are allowed by the instrument, subject to such
conditions as are specified in the instrument;
(2) No land
surface alterations shall occur on the property, such as filling, excavation,
mining, and dredging, except to the extent that they do not degrade the aquatic
resource for which the project was funded and do not pose a risk of such degradation;
(3) No wastes
generated off the property shall be disposed of, stored, or discharged on the property;
(4) No
substances that would be hazardous waste if discarded or abandoned shall be
disposed of on the property, and no such substances shall be stored or applied
on the property except in conjunction with any allowed water supply,
agricultural, forestry, or outdoor recreational activities, and provided the
storage and use do not threaten aquatic resource protection and are specifically
allowed by the instrument, subject to such conditions as are specified in the
instrument;
(5) No acts or
uses shall occur on the property that would:
a. Degrade
wetlands or water quality;
b. Cause an
unsustainable quantity of water to be withdrawn; or
c. Harm state
or federally recognized rare, threatened, or endangered species; and
(6) Activities
specifically allowed by the instrument, such as community drinking water
supply, agriculture, forestry, and outdoor recreation, shall be conducted in
accordance with a plan, best management practices, or conditions as set forth
in the instrument, subject to such conditions as are specified in the
instrument.
(c)
In the case of a conservation easement, the owner of the fee shall
retain all other customary rights and privileges of ownership including the
right to privacy and to carry out all regular agricultural and forestry
practices that are not prohibited by the restrictions in the easement.
Source. #8762, INTERIM, eff 11-21-06, EXPIRED: 5-20-07
New. #8911, eff 6-20-07;
ss by #11000, eff 2-1-16 (formerly Env-Wt 807.13); ss
by #12808, eff 12-15-19 (See Revision Notes #1 and #2 at chapter heading for
Env-Wt 800)
Env-Wt 808.15 Baseline Documentation Report. The baseline documentation report required by
Env-Wt 803.01(h)(4) or Env-Wt
808.09(c)(5) shall:
(a)
Describe the condition of the property(ies)
that will be subject to the conservation interest as of the time of the
transfer or acquisition of conservation restrictions;
(b)
Identify the property(ies) on a tax map and
USGS map;
(c)
Include color photographs of all areas that provide aquatic resource
functions and values; and
(d) Be signed by the conservation interest holder
and the property owner.
Source. #8762, INTERIM, eff 11-21-06, EXPIRED: 5-20-07
New. #8911, eff 6-20-07;
ss by #11000, eff 2-1-16 (formerly Env-Wt 807.14); ss by #12808,
eff 12-15-19 (See Revision Notes #1 and #2 at chapter heading for Env-Wt 800)
Env-Wt 808.16 Stewardship Requirements.
(a)
The grantee shall be responsible for ongoing stewardship of each
conservation interest acquired.
(b)
The grantee shall determine the financial and management implications of
each conservation interest and establish that it has or can obtain funds to
monitor and enforce the interest.
(c)
To fulfill its obligations under (a), above, the grantee shall:
(1) Prepare and
submit to the department an annual property inspection that confirms that
boundaries are being maintained and land is being appropriately protected
according to the terms of the conservation interest;
(2) For
conservation easements, contact landowners annually to inform the landowners of
their obligations under the easement; and
(3) Prepare and
submit an annual stewardship report to the department that contains the
following:
a. A
description of the site inspection conducted;
b. A
description of any physical changes to the property;
c. A
description of any landowner contact conducted;
d. A
description of any conditions that violate or may violate the intent of the
conservation interest; and
e. A
description, including current status, of any
violations witnessed and remedial steps taken.
Source. #8762, INTERIM, eff 11-21-06, EXPIRED: 5-20-07
New. #8911, eff 6-20-07;
ss by #11000, eff 2-1-16 (formerly Env-Wt 807.15); ss by #12808, eff
12-15-19 (See Revision Notes #1 and #2 at chapter heading for Env-Wt 800)
Env-Wt
808.17 Final
Approval, Execution, and Deed Recordation.
(a)
The department shall approve the acquisition of a conservation interest
if, for each property to be included in the conservation interest, the
applicant:
(1) Confirms
that the property is not contaminated in accordance with Env-Wt 808.10;
(2) Confirms
the property boundaries and acreage in accordance with Env-Wt
808.11;
(3) Negotiates a price not to exceed the fair
market value determined in accordance with Env-Wt 808.12;
(4) Confirms that there is clear and marketable
title for the property determined in accordance with Env-Wt
808.13;
(5) Submits a
deed that conforms to the requirements of Env-Wt
808.14; and
(6) Submits the
baseline documentation report prepared in accordance with Env-Wt 808.15.
(b)
Final execution, payment of acquisition cost, and recording of the
necessary instruments of transfer shall be conducted after final approval.
Source. #8762, INTERIM, eff 11-21-06, EXPIRED: 5-20-07
New. #8911, eff 6-20-07;
ss by #11000, eff 2-1-16 (formerly Env-Wt 807.16); ss by #12808, eff
12-15-19 (See Revision Notes #1 and #2 at chapter heading for Env-Wt 800)
Env-Wt 808.18 Site Selection Committee.
(a)
The site selection committee for the ARM Fund shall:
(1) Be
constituted as specified in RSA 482-A:32, II; and
(2) Have the purpose specified in RSA 482-A:32,
I, namely to identify projects to be funded from the
ARM Fund.
(b)
To accomplish the ARM Fund’s purpose, the site selection committee
shall:
(1) Participate
in meetings coordinated by the department to develop operating procedures for
the committee and discuss operation of the ARM Fund;
(2) Provide
guidance on the application ranking and selection criteria that will be used to
rank parcels considered for funding;
(3) Provide
contact information to the department for individuals or organizations that may
be knowledgeable on issues or priorities within the service areas for which
requests for eligible projects were made pursuant to Env-Wt
808.02(a);
(4) Assist the
department in determining dates to request pre-proposals and applications to be
submitted with specified deadlines for submittal;
(5) Oversee the
ARM Fund to ensure that funds deposited are considered for disbursal as
specified in Env-Wt 808.03;
(6) Evaluate
and rank applications in accordance with Env-Wt
808.19 and Env-Wt 808.20;
(7) Select the
project(s) that will be recommended to the wetlands
council for funding;
(8) Recommend
an amount to be disbursed for each project selected; and
(9) Review the
annual report prepared by the department pursuant to RSA 482-A:33.
Source. #8911, eff 6-20-07;
ss by #11000, eff 2-1-16 (formerly Env-Wt 807.17); ss by #12808, eff
12-15-19 (See Revision Notes #1 and #2 at chapter heading for Env-Wt 800)
Env-Wt
808.19 Application
Ranking and Selection by the Site Selection Committee.
(a)
For each application funding cycle the site
selection committee shall, within 120 days of the application deadline, rank
each project for which a pre-proposal that satisfies applicable pre-proposal requirements
and the request for ARM funding is received.
(b)
The ranking shall be based on a review of the applications and site
walks conducted by the department.
(c)
The site selection committee shall rank the project(s) that are located in the same service area as the impact areas
that paid into the fund.
(d)
The site selection committee shall select projects that:
(1) Provide the greatest potential to replace or
protect specific functions and values lost by the impacts in the service area;
and
(2) Are
consistent with the executed Final Federal
In Lieu Fee Instrument between the Army Corps of Engineers and the department
dated May 2012 and published at http://www.nae.usace.army.mil/Portals/74/docs/regulatory/Mitigation/NHinstrument051812.pdf.
(e)
Where project scores are comparable, preference shall be given to
projects that provide the longer term, more beneficial protection mechanism for
the project area and its buffer.
(f)
The site selection committee shall only consider applications for ARM
funds that include a budget that is based on good-faith, realistic estimates of
costs to accomplish the proposed project’s stated objectives and time frame.
(g)
The site selection committee shall select the highest ranked projects
for each application cycle and forward its recommendations to the wetlands
council.
(h)
As specified in RSA 482-A:29, IV,
the wetlands council shall approve disbursements of the ARM fund based on
recommendations provided by the site selection committee.
(i) If the department announces a watershed
account is ready to be spent and the submitted proposals do not address the
priorities for the service area, then the funds deposited in that account shall
remain to be available in a new application cycle.
(j)
Funds that remain in an account after the ARM fund applications have
been selected for funding shall be carried over in that service area account to
be available for the next application cycle.
(k)
Applications for ARM funds shall be evaluated based on the criteria and
points specified in Env-Wt 808.20.
Source. #8762, INTERIM, eff 11-21-06, EXPIRED: 5-20-07
New. #8911, eff 6-20-07;
ss by #11000, eff 2-1-16 (formerly Env-Wt 807.18); ss by #12808, eff
12-15-19 (See Revision Notes #1 and #2 at chapter heading for Env-Wt 800)
Env-Wt
808.20 Project
Evaluation.
(a)
The department and site selection committee shall:
(1) Evaluate a
wetlands mitigation project using the criteria in (b) through (f), below; and
(2) Evaluate a
stream passage improvement using the criteria in (c) through (g), below.
(b)
A maximum of 27 points shall be assigned based on the potential the
project has to restore, enhance, or retain similar wetland functions and values
lost within the service area, and those that have been identified by the site
selection committee as priorities for the application cycle, as follows:
(1) The project
shall receive 20 to 27 points if the application clearly demonstrates that the
project will:
a. Restore, enhance, or retain more than
two-thirds of the wetland types or natural community lost by the impacts that
generated the funds; or
b. Is located
in an area of significant habitat value with high likelihood of success and the
work will result in improved habitat functions;
(2) The project
shall receive 13 to 19 points if the application clearly demonstrates that the
project will:
a. Restore,
enhance, or retain less than two-thirds of the wetland types or natural
community by improving the ecological integrity function of the wetland and/or
other functions lost in the service area; or
b. Provides an
improvement in the functions that were impaired in the service area as
identified in the compensation planning framework;
(3) The project
shall receive 6 to 12 points if the application clearly demonstrates that the
project will:
a. Restore, enhance or
retain less than two-thirds of the wetland types or natural community other
than by improving the ecological integrity function of the wetland and/or other
functions lost in the service area; or
b. Provides an
improvement in the functions that were impaired in the service area as
identified in the compensation planning framework; or
(4) The project
shall receive one to 5 points if the application credibly asserts but does not
clearly establish that the project will restore, enhance, or retain some of the
wetland types or natural community or functions previously impaired in the
service area.
(c)
A maximum of 27 points shall be assigned based on the overall
environmental significance the project provides, with the project receiving one
to 9 points for each of the following that apply:
(1) The project
is located within a source water protection area or overlays a high-yield
stratified drift aquifer;
(2) The project will protect endangered,
threatened, or special concern species or exemplary natural communities
documented to occur on the property; and
(3) The project
is located in or in close proximity to WAP highest
quality wildlife habitat or WAP conservation focal areas.
(d)
A maximum of 19 points shall be assigned based on the project’s
proximity and connectivity to the following resources, with the project
receiving the points noted for each of the following that apply:
(1) If the
project is adjacent to lands protected in perpetuity, the project shall receive
4 points;
(2) If the
project provides a connection between lands that are currently unconnected and
which are protected in perpetuity, the project shall receive one to 4 points;
(3) If the
project will protect linkages or over-land connections among and between one or
more aquatic resource areas, the project shall receive one to 4 points;
(4) If the
project will protect lands within a large unfragmented block of land, relative
to the service area, the project shall receive one to 4 points; and
(5) If the
project is located within the same sub-watershed as the impact area(s), the
project shall receive 3 points.
(e)
A maximum of 19 points shall be assigned based on the overall mitigation
potential for the project to address the considerations noted below, with the
project receiving the points noted for each of the following that apply:
(1) The project
shall receive one to 6 points if it will protect most or all of the aquatic resource;
(2) The project
shall receive one to 6 points if it will provide an upland buffer that protects
an aquatic resource identified as a prime wetland by a municipality or
recognized in a municipal or regional wetland or natural resource study;
(3) The project
shall receive one to 4 points if it will protect, at a minimum, a 200-foot
upland buffer around most or all of the aquatic
resource; and
(4) The project shall receive one to 3 points if
it will protect most or all of the HUC 12-digit
watershed of the aquatic resource.
(f)
A maximum of 8 points shall be assigned based on the cost-effectiveness
of the project and partnership potential, with the project receiving the points
noted for each of the following that apply:
(1) The project shall receive 3 points if it will
provide a cash or in-kind donation match of at least 30%;
(2) The project
shall receive one to 3 points if the project area is identified in a federal,
or state environmental priority plan other than the WAP; and
(3) The project
shall receive 3 points if it is supported by the host municipality.
(g)
A maximum of 27 points shall be assigned based on the potential the
project has to provide a stream passage improvement for stream resources in the
service area that were impaired, and those that have been identified by the
site selection committee as priorities for the application cycle.
Source. #8911, eff 6-20-07;
ss by #11000, eff 2-1-16 (formerly Env-Wt 807.19); ss by #12808, eff
12-15-19 (See Revision Notes #1 and #2 at chapter heading for Env-Wt 800)
Env-Wt
808.21 Annual
Report. The annual report prepared pursuant to RSA 482-A:33 shall include
the following for the reporting period covered by the report:
(a)
A summary that details the sources of all payments received and all fund
expenditures on a per- service area basis;
(b)
A description of each project funded and information on the progress or
completion of those projects;
(c)
The acreage and type of aquatic resources restored, enhanced, created,
or otherwise protected in each service area by the projects described pursuant
to (b), above; and
(d)
The functions gained by the projects described pursuant to (b), above.
Source. #12808, eff 12-15-19
(See Revision Notes #1 and #2 at chapter heading for Env-Wt
800)
Appendix A: State Statutes Implemented
|
Rule Section(s) |
State Statute(S)
Implemented |
Federal
Statutes/Regulations Implemented |
|
Env-Wt 800 |
RSA 482-A:3, I;
RSA 482-A:11; RSA 482-A:28-33 |
Clean Water Act,
Section 404; 33 CFR Parts 325 & 332 |
Appendix B: Incorporated References
|
Rule |
Title
(Date) |
Obtain
From: |
|
Env-Wt 803.01(b) |
Classification
of Wetlands and Deepwater Habitats of the United States”, 2nd
Edition (2013) |
Federal
Geographic Data Committee, Wetlands Subcommittee 12201
Sunrise Valley Drive Email:
fgdc@fgdc.gov Download at no cost from: https://www.fgdc.gov/standards/projects/wetlands/nwcs-2013 |
|
|
|
U.S. Army Corps
of Engineers New England District 696 Virginia
Road Concord, MA
01742 (978) 318-8338 |
|
Env-Wt 803.02(a)(1)a. |
The Highway
Methodology Workbook Supplement (2015) |
Download
at no cost from: http://www.nae.usace.army.mil/Portals/74/docs/regulatory/Forms/HighwaySupplement6Apr2015.pdf
|
|
Env-Wt 803.02(a)(1)b. |
Method for Inventorying and Evaluating Freshwater Wetlands in New
Hampshire (2013; revised 2015, 2016) |
UNH
Cooperative Extension Durham,
NH 03824 Phone:
(603)862-1520 Download at
no cost from: |
|
Env-Wt 803.03(a)(2) |
Applied River Morphology, Dave Rosgen, 2nd
Edition (1996) |
Wildland
Hydrology 11210 N.
County Road 19 Phone: (970)
568-0002 Email:wildland@wildlandhydrology.com Available for $71.76 [as
of 09-19-18] at: https://www.wildlandhydrology.com/books/ Available used or new from Amazon.com
and other sellers from ~$63 (used) to
~$155 (new). |
|
Env-Wt 803.05 intro |
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 |
|
Env-Wt 805.01(c)(3)d. |
Vernal Pool Best Management Practices (BMPs) (January 2015) |
U.S Army Corps
of Engineers New England
District 696 Virginia
Road Concord, MA
01742-2751 (978)318-8338 Download at
no cost from: http://www.nae.usace.army.mil/Portals/74/docs/regulatory/VernalPools/VPBMPsJan2015.pdf |
Appendix C: Statutory Definition
RSA 310-A:76:
II-a. “Certified wetland scientist” means a person who, by reason of his
or her special knowledge of hydric soils, hydrophytic vegetation, and wetland
hydrology acquired by course work and experience, as specified by RSA 310-A:84,
II-a and II-b, is qualified to delineate wetland boundaries and to prepare
wetland maps; to classify wetlands; to prepare wetland function and value
assessments; to design wetland mitigation; to implement wetland mitigation; to
monitor wetlands functions and values; and to prepare associated reports, all
in accordance with standards for identification of wetlands adopted by the New
Hampshire department of environmental services or the United States Army Corps
of Engineers or their successors, and who has been duly certified by the board.
Appendix D: Other
Statutory Provisions
[none in this chapter]
Appendix E: Summary of
Abbreviations and Acronyms
|
Term |
Meaning |
|
“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 |
|
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: |
|
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 |