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WETLANDS - NH DES Wetlands Rules
NH DES Wetlands Rules
Wetlands 101
The new Rules do not dramatically change the roles and responsibilities of conservation commissions in the permit review process thanks to CC members who spoke up, wrote letters to DES and attended public hearings. NH municipal conservation commissions still have the power to “intervene” or provide comments about an application to the Wetlands Bureau to allow for local review of the proposal. The Standard Dredge and Fill Application still allow for conservation commissions to intervene if they notify DES within 14 days of the permit being filed at the town clerk’s office.
A summary of the changes includes the reduction of permit processing timelines and impact thresholds. The threshold for major impacts has been reduced to 10,000 sf to match the mitigation threshold. Standard permits will be processed in 50 to 75 days as outlined in RSA 482-A Click HERE. Permit-by-notification (PBN) will be processed in 5 days instead of 10 days, but the application must be signed by the conservation commission. The number of projects eligible for PBN has increased, but the new Rules created a Priority Resource Area (PRA) which elevates the review process in some applications. Utility maintenance is eligible for SPN with the NH Natural Heritage Bureau and/or NH Fish & Game recommendation. Abutter setbacks have been reduced to 10 feet for wetland projects. Public hearing requirements are more objective and define substantial public interest as "when NH DES has been contacted by individuals and town or county officials or govt. who have voiced concerns documenting flood storage, hydrologic integrity, or habitat from a local, state or regional perspective."
NHACC created several guidance documents to help commissions understand the Wetland Permit Review Process:
- CC Role in Permit Review Spreadsheet Click HERE
- NHACC Wetlands Factsheet Click HERE
- NHACC Wetlands Protection Click HERE
- DES CC Responsibilities in Wetland Permitting Click HERE
- Wetland and Shoreland Resources for Applicants Click HERE
For more information and to view the FINAL PROPOSALS go to the Department of Environmental Services (DES) website for the Wetlands Administrative Rules: Click HERE
The NHACC presentation on the Role of CC in the Permit Review Process HERE can be found on the Workshop page of NHACC website. Summary of CC Review includes:
- Establishing a process for timely notice of applications received by the municipal clerk.
- Considering a commission vote to designate a member to sign intervention notice if the timeline for the CCs to meet ahead of a due date is not possible.
- Arranging with the agent or applicant to conduct a site walk (consider coordinating with the Planning Board).
Excerpts from final Wetlands Rules and RSA 482-A are listed below with any reference to conservation commissions highlighted in yellow.
Conservation Commission review role in Permit-by-Notice (PBN) has been restored.
The Permit-by-Notification (PBN) will require a signed statement from the conservation commission waiving the right to intervene to be eligible for the 5-day review. If the permit is not signed by the CC it will be reviewed as a Standard permit or may be re-submitted by the applicant with completed information. The Wetlands Permit-by-Notification (PBN) Application Form requires the CC signature in Section 12. If the form is not signed by the CC the applicant must submit a Standard Application or a revised PBN application. You can download the PBN application form HERE.
Expedited permit review time has been restored to 30 days.
The Expedited (EXP) application will also require a waiver from the conservation commission and the time frame has been restored to a 30-day review period. If EXP permits do not have a waiver signed by the conservation commission or municipality, then the project will be processed as a Standard Permit or the applicant can submit a revised application.
Expedited (EXP) Minimum Impact Wetlands Permit Application Form requires the CC signature in Section 13. Download the form HERE. If the application is complete, except for the signed statement from the Conservation Commission waiving their right to intervene on the project, the application will be processed under the standard application processing times established in RSA 482-A:3, XIV HERE.
Standard Permits continue to allow for CC review according to: RSA 482-A HERE
As defined under RSA 482-A:11 Administrative Provisions, Commissions must provide written notification with 14 days of filing date in order to investigate a permit application and they must provide a written report within 40 days of application filing. See below for reference to conservation commissions. The Standard Dredge and Fill application is HERE
Wetland Rules
Env-Wt 103.66 “Priority resource area (PRA)” means 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;
(e) Is a duly-established 100-foot buffer of designated prime wetlands;
(f) Is a sand dune, tidal wetland, tidal water, or undeveloped tidal buffer zone; or
(g) Is any combination of (a) through (f), above.
Env-Wt 309.06 Availability of Permit-by-Notification (PBN).
Any person intending to undertake activities in a jurisdictional area may do so under a PBN as authorized by RSA 482-A:11, VI if the project is: (a) A minimum impact project...
Env-Wt 309.07 PBN Application Requirements. To obtain a PBN, the applicant shall submit to the department the following, on or with a PBN Application, NHDES W-06-27, dated December 15, 2019:
(h) A signed statement from the conservation commission or, if there is no conservation commission, the local governing body, certifying that the municipality waives its right to intervene on the project; and
Env-Wt 309.08 PBN Review Procedures.
(b) If the PBN application does not contain all information and certifications required by Env-Wt 309.07, the department shall deny the application and notify the applicant of the reason(s) for the denial in writing within 4 working days of receipt of the application.
PART Env-Wt 310 SUBMISSIONS FOR EXPEDITED PERMITS (EXPs)
Env-Wt 310.01 EXP Submission Requirements. To obtain an EXP, the applicant shall submit to the department the following, on or with an EXP Application, NHDES W-06-012, dated December 15, 2019: …
(h) A signed statement from the municipal conservation commission or, if there is no conservation commission, the local governing body, certifying that the municipality waives its right to intervene on the project; and
Env-Wt 310.02 EXP Review Procedures. (a) The department shall review the application for an EXP for completeness and compliance with applicable department rules within 30 calendar days of receipt if the application has been signed as required by Env-Wt 310.01(h) and (i).
Section 482-A:11
482-A:11 Administrative Provisions.
III. (a) Upon written notification to the department by a municipal conservation commission, a local river management advisory committee, or the New Hampshire Rivers Council that it intends to investigate any notice received by it pursuant to RSA 482-A:3, the department shall not make its decision on the application that is the subject of the notice until it has received and acknowledged receipt of a written report from such commission, local river management advisory committee, or the council, or until 40 days from the date of filing with the municipal clerk of such notice, whichever occurs earlier, subject to an extension of up to 40 days, as permitted by the commissioner, for good cause shown. In connection with any local investigation, a conservation commission may hold a public informational meeting or a public hearing, the record of which shall be made a part of the record of the department. Where the commissioner grants an extension, the time limits prescribed by RSA 482-A:3, XIV(b) shall be suspended for up to 40 days as agreed to by the applicant and the department. If a conservation commission, a local river management advisory committee, or the New Hampshire Rivers Council makes a recommendation to the department in its report, the department shall specifically consider such recommendation and shall make written findings with respect to each issue raised in such report which is contrary to the decision of the department. If notification by a local conservation commission, local river management advisory committee, or the New Hampshire Rivers Council pursuant to this paragraph is not received by the department within 14 days following the date the notice is filed with the municipal clerk, the department shall not suspend its normal action, but shall proceed as if no notification has been made.
The threshold for major impact projects has been reduced to > 10,000 Square Feet from > 20,000 Square Feet
