02/14/08 0455s

07May2008… 1607h

05/15/08 1945eba

2008 SESSION

08-2848

08/03

SENATE BILL 352-FN

COMMITTEE: Energy, Environment and Economic Development

AMENDED ANALYSIS

This bill:

I. Gives the wetlands council jurisdiction over appeals of department of environmental services decisions relating to protected shorelands.

II. Requires that certain percentages of vegetation within the natural woodland buffer remain unaltered.

III. Allows the placement of certain herbicides within a waterfront buffer with a special permit.

IV. Requires that shoreland permit applicants provide notice to abutters.

V. Extends the reporting dates for the instream flow pilot program.

VI. Integrates the provisions of HB 1601-FN-A into the provisions of this bill, if HB 1601-FN-A becomes law.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

02/14/08 0455s

07May2008… 1607h

05/15/08 1945eba

08-2848

08/03

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Eight

Be it Enacted by the Senate and House of Representatives in General Court convened:

171:1 Shoreland Protection; Water Council. Amend RSA 21-O:7, IV to read as follows:

IV. The water council shall hear and decide all appeals from department decisions relative to the functions and responsibilities of the division of water other than department decisions made under RSA 482-A relative to wetlands, and RSA 483-B relative to shoreland protection, in accordance with RSA 21-O:14.

171:2 Shoreland Protection; Water Council. Amend RSA 21-O:7, V to read as follows:

V. The director of the division of water shall present all rules proposed to be implemented by the water division, other than rules implementing RSA 482-A relative to wetlands, and RSA 483-B relative to shoreland protection, to the water council for consideration prior to filing a notice of proposed rule under RSA 541-A:6. The council shall present any objections to proposed rules to the director of the division of water and to the commissioner in writing within 15 days. The commissioner may adopt a rule to which the council has objected only after presenting a written reply to the council detailing the reasons for adopting the rule over the objections of the council.

171:3 Shoreland Protection; Wetlands Council. Amend the introductory paragraph of RSA 21-O:5-a, I to read as follows:

I. There is established a wetlands council for the purpose of implementing the provisions of law conferring on the department authority to decide matters relative to resources of the state, including, but not limited to, excavating, dredging, and filling waters of the state as well as activities occurring within the state’s regulated shoreland under RSA 483-B. Appointees and officials shall have voting rights as members of the wetlands council; provided, however, that nothing in this section shall be construed as affecting other duties of the department with reference to dams, water levels, and administration of the department of environmental services. The wetlands council shall be composed of the following:

171:4 Shoreland Protection; Wetlands Council. Amend RSA 21-O:5-a, IV-VI to read as follows:

IV. The council shall consult with and advise the commissioner of the department of environmental services, on a continuing basis with respect to the policy, programs, goals, and operations of the department as they relate to wetlands and protected shorelands with particular emphasis on long-range planning for the department and on education of the public relative to the functions of the department. In order to accomplish these purposes, the council shall meet with the commissioner not less frequently than quarterly, or at the call of the chairperson or 3 council members. The council shall file annually a report of its deliberations and recommendations with the commissioner of the department of environmental services and the governor and council.

V. The wetlands council shall hear and decide all appeals from department decisions relative to the functions and responsibilities of the department which relate to wetlands and protected shorelands, in accordance with rules adopted by the council.

VI. The commissioner of the department of environmental services shall present all proposed rules relative to wetlands and protected shorelands to the wetlands council for consideration prior to filing a notice of proposed rule under RSA 541-A:6. The council shall present any objections to proposed rules to the commissioner in writing within 15 days. The commissioner may adopt a rule to which the council has objected only after presenting a written reply to the council detailing the reasons for adopting the rule over the objections of the council.

171:5 Shoreland Protection; Administrative Appeals. Amend RSA 21-O:14, II-III to read as follows:

II. Hearings before all councils[, except the wetlands council,] established by this chapter shall be conducted in accordance with the provisions of RSA 541-A governing adjudicative proceedings.

III. Persons aggrieved by the disposition of administrative appeals before any council established by this chapter[, except the wetlands council,] may appeal such results in accordance with RSA 541.

171:6 Fill and Dredge in Wetlands; Appeals. Amend RSA 482-A:10, I through VIII to read as follows:

I. Any person aggrieved by a decision made by the department under RSA 482-A:3 [or subject to an order of the department under RSA 482-A:6] may apply for reconsideration by the department, and then may appeal to the wetlands council and to the [superior] supreme court as provided in this section. A person aggrieved under this section shall [include without limitation,] mean the applicant and any person required to be noticed by mail in accordance with RSA 482-A:8 and RSA 482-A:9.

I-a. Any person subject to an order of the department under RSA 482-A:6 may appeal to the wetlands council and to the supreme court as provided in this section. The appellant shall not first request reconsideration, but shall file the appeal directly with the council as provided in paragraph IV, within 30 days of the date of the order.

II. A request for reconsideration of a department decision under RSA 482-A:3 shall be filed with the department within [20] 30 days of issuance of the department’s decision [or order]. The request for reconsideration shall describe in detail each ground for [complaint. No ground not set forth in the request for reconsideration shall be considered by the council, or by the superior court except as provided in paragraph VIII of this section] the request for reconsideration.

III. On reconsideration, the department shall receive and consider any new and additional evidence presented, and shall make findings of fact and rulings of law in support of its decision after reconsideration. The department may hold a public hearing in accordance with its rules. Reconsideration hearings shall not be subject to the requirements of RSA 541-A. Reconsideration hearings shall be noticed in accordance with rules adopted by the department, which notice shall also be sent to all persons entitled to notice of applications under RSA 482-A:8 and RSA 482-A:9, and the department shall make a record of the proceedings. The department shall grant or deny the [application] request for reconsideration within 30 days of the [service] department’s receipt of the [application] request or explain in writing to the applicant why the [application] request cannot be acted on and a statement of the time reasonably necessary to act on the [application] request. When the basis for denial was failure by the applicant to submit all requested information and the applicant submits all of the requested information with the request for reconsideration, the department shall act on the request within 75 days from the date of the department’s receipt of the request for projects where the applicant proposes less than one acre of jurisdictional impact, and within 105 days for all other projects.

IV. An appeal from a decision of the department under RSA 482-A:3 after reconsideration, or an appeal from an order issued by the department under RSA 482-A:6, shall be filed with the wetlands council within 30 days of the department’s decision or order. An appeal shall be considered timely filed and received by the wetlands council if postmarked or hand delivered to the wetlands council on or before the thirtieth day from the date of the department’s decision. Filing of the appeal shall be made by certified mail or hand delivery to the wetlands council, with a copy sent to the department. An appeal to the council shall contain a detailed description of the land involved in the department’s decision and shall set forth fully every ground upon which it is claimed that the decision complained of is unlawful or unreasonable. Only those grounds set forth in the appeal shall be considered by the council.

V. The council on appeal shall hold [a non-evidentiary] an adjudicative hearing as provided in [its] RSA 541-A and the council’s rules. The hearing shall be noticed in accordance with RSA 541-A:31, III. For appeals of department decisions under RSA 482-A:3, the notice shall also be sent to all persons entitled to notice of applications under RSA 482-A:8 and RSA 482-A:9. [The department shall provide the council with its record of decision upon receiving notice of the hearing. The appeal shall be determined upon the record below.] The burden of proof shall be on the party seeking to set aside the department’s decision to show that the decision is unlawful or unreasonable. On appeal of requests proposed, sponsored, or administered by the department of transportation, there shall be a rebuttable presumption that there is a public need for the requested project, and that the department of transportation has exercised appropriate engineering judgment in the project’s design. All findings of the department upon all questions of fact properly before it shall be prima facie lawful and reasonable.

V-a. Any person whose rights will be directly affected by the outcome of the appeal may appear and become a party to the appeal. Any person whose rights may be directly affected by the outcome of the appeal may file a request to intervene as provided in RSA 541-A:32.

VI. On appeal, the council may affirm the decision of the department or may remand to the department with a determination that the decision complained of is unlawful or unreasonable. The council shall specify the factual and legal basis for its determination and shall identify the evidence in the record created before the council that supports its decision.

VII. Any party aggrieved by a decision of the council may apply to the council for reconsideration [within 20 days of the council’s order. The council shall grant or deny the application for reconsideration at its first regularly scheduled meeting after service of the application. The council may grant such application if in its opinion good reason therefor is stated] as specified in RSA 541.

VIII. Any [person] party aggrieved by a decision of the council after reconsideration may appeal to the [superior] supreme court [for the county where the land in question is located by petition within 30 days of issuance of such decision. The petition shall set forth each ground upon which the decision is claimed to be unlawful or unreasonable, in whole or in part. No ground not set forth in the application for reconsideration shall be given any consideration by the court unless the court for good cause shown shall allow the appellant to specify additional grounds] as specified in RSA 541.

171:7 Appeals. Amend RSA 482-A:10, XVIII to read as follows:

XVIII. If a permit is granted with respect to any activity proposed to be undertaken in or adjacent to a prime wetland as mapped, designated, and filed pursuant to RSA 482-A:15, the conservation commission or local governing body may request reconsideration by the department and, if aggrieved by the decision or reconsideration, appeal said decision to the [superior] wetlands council and the supreme court in the manner prescribed in this section. The filing of a request for reconsideration shall automatically stay the effectiveness of the department’s decision relating to said prime wetland. Said stay shall remain in force until the department has issued its decision after reconsideration.

171:8 Unaltered State; Definition. RSA 483-B:4, XXIV-a is repealed and reenacted to read as follows:

XXIV-a. “Unaltered state” means native vegetation allowed to grow without cutting, limbing, trimming, pruning, mowing, or other similar activities.

171:9 Natural Woodland Buffer. RSA 483-B:9, V(b)(2)(A) is repealed and reenacted to read as follows:

(A)(i) For lots with one-half acre or less of land within the natural woodland buffer, the vegetation within at least 25 percent of the area outside the waterfront buffer shall be maintained in an unaltered state. Owners of lots legally developed prior to July 1, 2008 that do not comply with this standard are encouraged to, but shall not be required to, increase the percentage of area maintained in an unaltered state. The percentage of area maintained in an unaltered state on nonconforming lots shall not be decreased.

(ii) For lots with greater than one-half acre of land within the natural woodland buffer, the vegetation within at least 50 percent of the area outside the waterfront buffer, exclusive of impervious surfaces, shall be maintained in an unaltered state. Owners of lots legally developed prior to July 1, 2008 that do not comply with this standard are encouraged to, but shall not be required to, increase the percentage of area maintained in an unaltered state. The percentage of area maintained in an unaltered state on nonconforming lots shall not be decreased.

171:10 Addition of Tree Limbs. RSA 483-B:9, V(b)(2)(C) is repealed and reenacted to read as follows:

(C) Dead, diseased, or unsafe, trees, limbs, saplings, or shrubs that pose an imminent hazard to structures or have the potential to cause personal injury may be removed regardless of any requirements that pertain to the natural woodland buffer under this chapter. Such exemptions shall not be used to contravene the intent of the law.

171:11 Impervious Surfaces. RSA 483-B:9, V(g)(1)-(4) is repealed and reenacted to read as follows:

(1) Subject to subparagraph (2), no more than 30 percent of the area of a lot located within the protected shoreland shall be composed of impervious surfaces.

(2) If the impervious surface area will exceed 20 percent, a stormwater management system shall be implemented and maintained which is designed to infiltrate increased stormwater from development occurring after the effective date of this paragraph in accordance with rules established by the department under RSA 485-A:17. In addition, if the natural tree and sapling cover in the waterfront buffer does not meet the 50-point minimum score of RSA 483-B:9, V(a)(2)(D) in any segment, then such segment shall be planted, as determined by rule of the department, with native trees, saplings, or natural ground cover in sufficient quantity, type, and location either to meet the minimum score or to provide at least an equivalent level of protection as provided by the minimum score and shall be maintained in accordance with RSA 483-B:9, V(a).

(3) Property owners and developers are encouraged to seek creative solutions that utilize low impact development techniques.

171:12 Pesticides. RSA 483-B:9, V(a)(2)(A) is repealed and reenacted to read as follows:

(A) No chemicals shall be applied, including pesticides or herbicides of any kind except as allowed under special permit issued by the division of pesticide control under rules adopted by the pesticide control board under RSA 541-A, or fertilizers of any kind except those specified in RSA 483-B:9, II(d).

171:13 Abutter; Definition. RSA 483-B:4, I is repealed and reenacted to read as follows:

I. “Abutter” means any person who owns property that is immediately contiguous to the property on which the proposed work will take place, or who owns flowage rights on such property. The term does not include those properties separated by a public road or more than ¼ mile from the limits of the proposed work. If contiguous properties are owned by the person who is proposing the work, then the term includes the person owning the next contiguous property, subject to the ¼ mile limitation.

171:14 New Paragraph; Permit Application; Copies of Receipts. Amend RSA 483-B:5-a by inserting after paragraph IV the following new paragraph:

IV-a. At the time of the permit application, the applicant shall provide postal receipts or copies, verifying that the governing body of the municipality or municipalities in which the property is located and all abutters have been notified of the application by certified mail.

171:15 New Paragraph; Purpose Statement. Amend RSA 483-B:1 by inserting after paragraph I-a the following new paragraph:

I-b. Scientific evidence has confirmed that even small areas of impervious surface coverage can have deleterious impacts on water quality and the aesthetic beauty of our lakes and rivers if not properly contained or managed within each watershed. These impacts are known to reduce recreational opportunity, reduce property values, and pose human health risks.

171:16 Repeal. RSA 482-A:10, X-XVII relative to appeals, is repealed.

171:17 Unaltered State; Definition. RSA 483-B:4, XXIV-b is repealed and reenacted to read as follows:

XXIV-b. “Unaltered state” means native vegetation allowed to grow without cutting, limbing, trimming, pruning, mowing, or other similar activities.

171:18 New Paragraph; Permit Application; Copies of Receipts. Amend RSA 483-B:5-b by inserting after paragraph IV the following new paragraph:

IV-a. At the time of the permit application, the applicant shall provide postal receipts or copies, verifying that the governing body of the municipality or municipalities in which the property is located and all abutters have been notified of the application by certified mail.

171:19 Repeal. Section 26 of HB 1601-FN-A of the 2008 legislative session, relative to repeal and readoption of rules, is repealed.

171:20 Repeal and Readoption of Rules.

I. Notwithstanding the provisions of RSA 541-A, the commissioner of the department of environmental services shall immediately repeal administrative rules chapter Env-Wq 1400 adopted March 24, 2008 pursuant to RSA 483-B:17.

II. Notwithstanding the provisions of RSA 541-A, the commissioner of the department of environmental services shall immediately readopt the administrative rules that were in effect prior to the effective date of the rules repealed under paragraph I. Such rules shall be effective as rules of the department and shall remain in effect until rules are adopted under paragraph IV, or are otherwise repealed or amended or have expired in accordance with RSA 541-A.

III. The commissioner of the department of environmental services shall notify in writing the director of legislative services of the dates of repeal and readoption of rules under paragraphs I and II.

IV. The commissioner of the department of environmental services may adopt rules to be in effect as of July 1, 2008 that are the same as the rules repealed under paragraph I, except that the commissioner shall modify the date references in the rules to take into account the July 1, 2008 effective date. Such rule adoption shall be exempt from the rulemaking provisions of RSA 541-A, provided the commissioner adopts the rules and files them with the office of legislative services prior to July 1, 2008. The rules shall expire on July 1, 2016 unless readopted, amended, or repealed pursuant to RSA 541-A.

V. The commissioner of the department of environmental services shall prepare, and the director of the office of legislative services shall publish in the rulemaking register, one or more notices, as necessary, to clearly state which rules will be in effect during affected time periods.

171:21 Contingency.

I. If HB 1601-FN-A of the 2008 legislative session becomes law, sections 1-7, 13, and 15-16 of this act shall take effect July 1, 2008; sections 9-12, and 17-18 of this act shall take effect July 1, 2008 at 12:01 a.m.; sections 19-20 of this act shall take effect upon its passage; and sections 8 and 14 of this act shall not take effect.

II. If HB 1601-FN-A of the 2008 legislative session does not take effect, sections 17-20 of this act shall not take effect and the remainder of this act shall take effect July 1, 2008.

171:22 Effective Date.

I. Sections 1-20 of this act shall take effect as provided in section 21 of this act.

II. The remainder of this act shall take effect upon its passage.

Approved: June 6, 2008

Effective Date: I. Sections 1-20 shall take effect as provided in section 21.

II. Remainder shall take effect June 6, 2008.

• SB352 at GenCourtMobile

Bill Text Revisions

SB352 Revision: 12155 Date: Jan. 1, 2008, midnight

Docket

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