New Rules for Wetlands

After five years of review, NH will implement on Dec. 15 its first overhaul of wetlands protection regulations in 28 years, creating new rules of the road for those pursuing construction and renovation projects affecting wetland zones.

These new rules stand to deliver major benefits to NH’s residents, wildlife, plant life and the environment as wetlands are sources of clean water and animal and plant habitat; and provide natural resilience to storms and rising sea levels. For property developers, they stand to make big changes in the process of getting regulators’ approval for projects affecting wetlands. In some cases, the changes will make certain permits faster to obtain, while for others it will require more extensive analysis and review.

The new regulations will mean that most projects will face different requirements for environmental review than they do today, through new forms, revised processes, and newly defined  best practices.

Here are six of the most substantive changes that businesses, homeowners, institutions, and anyone performing construction affecting wetlands will need to be prepared for starting this month:

1. Project Classification
The classification of what is considered a minimum, minor or major project has been adjusted, each triggering different requirements for permitting and mitigation. For example, projects with 10,000 square feet or more of wetland impact will typically be considered major impact projects starting Dec. 15.  Previously, the “major” designation did not kick in until 20,000 square feet of impact for many projects.  Major projects generally trigger the need for pre-application meetings with representatives of the NH Department of Environmental Services (NHDES), U.S. Army Corps of Engineers, U.S.

Environmental Protection Agency and NH Natural Heritage Bureau/NH Fish and Game Department. Major projects also usually require formal wetland mitigation, such as wetland restoration, wetland/upland buffer preservation, or payment of an “in-lieu” mitigation fee as an alternative to performing an on-the-ground project.

2. Streamlined Permitting and Fees
While fees for standard wetlands permits doubled effective Nov. 1 (as part of House Bill 4), the new rules include streamlined permitting for a larger suite of smaller projects that can help avoid paying the higher fees in some cases. Today, there are 14 permit by notification (PBN) project types the NHDES reviews and approves within a 10-day timeframe unless it determines more extensive review is warranted. The new rules include 21 projects with a five-day review, including a smaller project category called statutory permit by notification (SPNs). Despite the new name, an SPN is essentially the same thing as a PBN, just with shorter review times and more category choices.

3. Evaluation Requirements
Project proponents will be required to evaluate whether their projects affect priority resource areas (PRAs) that include documented occurrences of protected species or habitat for such species, including bogs, designated prime wetlands and sand dunes/tidal wetlands/tidal water/undeveloped tidal buffer zones. Proposing a project affecting a PRA can trigger the “major” impact classification. The new rules add a new category of PRA: floodplain wetlands contiguous to a three or higher watercourse (a complex definition that involves the size of the river’s or stream’s watershed and the presence of certain environmental resources or conditions). NHDES has developed a wetland permit planning tool that can help pre-screen for PRAs on a proposed construction site. This tool can be used to evaluate a project in conjunction with site data provided by the proponent’s land management team (wetland scientists, soil scientists, surveyors and engineers). Coordination with regulators to avoid impacts to PRAs will reduce review time and total project cost.

4. Reduced Abutter’s Zone
The new rules reduce the zone within which one needs to secure an abutter’s concurrence for a project with wetlands impacts from the current 20 feet to 10 feet (except for boat docking facilities). That can make projects on small lots easier to get approved. Put another way, one will need to present NHDES with abutters’ OK for a wetlands-impacting project if the wetlands area being affected is within 10 feet of their property line, rather than the 20-foot rule today. Of course, this does not eliminate local setback requirements dictated by town ordinances.

5. New Intervenor Status
Going forward, NH’s 19 local river advisory committees (RACs) will have formal authority as intervenors in the NHDES project review process, similar to conservation commissions. Several kinds of applications will, for the first time, require RACs’ signed approval to secure shorter permitting reviews. Meeting with the local RAC to address their questions ahead of time will be an important new step in the wetlands regulations compliance process in order to streamline permitting.

6. Vulnerability Assessments
One of the most substantive changes is that many coastal projects will be required to complete vulnerability assessments that address flood tolerance and model for predicted sea level rise. These are complex assessments that can be performed by consulting engineers. Also, many coastal projects will be required to perform complex and potentially costly tidal mitigation work.

Tracy L. Tarr is an associate principal in the Bedford office of GZA GeoEnvironmental, an employee-owned consulting firm providing geotechnical, environmental, water, ecological and construction management services.