SB 335 – AS INTRODUCED
2010 SESSION
08/04
SENATE BILL 335
AN ACT relative to wetland impact assessments in construction permit applications.
SPONSORS: Sen. Janeway, Dist 7; Sen. Merrill, Dist 21; Sen. Fuller Clark, Dist 24
COMMITTEE: Energy, Environment and Economic Development
This bill requires the department of environmental services to consider the changes in the functions and values of wetlands and aquatic resources before approving fill and dredge permits.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
10-2883
08/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Ten
AN ACT relative to wetland impact assessments in construction permit applications.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Section; Impacts Assessments. Amend RSA 482-A by inserting after section 3 the following new section:
482-A:3-a Impacts Assessments.
I.(a) In determining whether to approve or deny an application for a permit, the department shall assess the changes in the functions and values of wetlands and aquatic resources that are reasonably likely to be caused by the construction and post-construction use and maintenance of the proposed project.
(b) Except for those projects excluded pursuant to RSA 482-A:3-a, III, the department shall assess the changes in the functions and values of wetlands and aquatic resources that are reasonably likely to be caused by the construction and post-construction use and operation of those portions of a project proposed to be located in an indirect-impact evaluation area. For purposes of this section, “indirect-impact evaluation area” is an area surrounding or bordering wetlands or other aquatic resources, the width of which shall be determined on an application-specific basis as follows:
(1) Except as otherwise provided in subparagraphs (6) and (7), and until such time as the department adopts rules pursuant to paragraph IV, the width of indirect-impact evaluation areas shall be determined using the functional value indices for “Ecological Integrity,” “Wetland Wildlife Habitat,” “Finfish Habitat,” “Noteworthiness,” “Flood Control Potential,” “Ground Water Use Potential,” “Sediment Trapping,” and “Nutrient Attenuation,” as calculated using the methodology in the Comparative Evaluation of Nontidal Wetlands in New Hampshire, as published by the department in March 1991 (“the New Hampshire Method”).
(2) Roadside ditches, detention basins, drainage structures, treatment swales, constructed stormwater treatment wetlands, dug ponds, rain gardens, or other stormwater treatment structures, and natural wetlands having a functional value index of less than 0.3 for all of the functional value indices identified in subparagraph (i), shall have no indirect-impact evaluation area.
(3) Freshwater wetlands having a functional value index equal to or greater than 0.3 but less than 0.5 for one or more of the functional value indices identified in subparagraph (1) shall have an indirect-impact evaluation area 50 feet wide.
(4) Freshwater wetlands that have a functional value index of 0.5 or more for “Flood Control Potential,” “Groundwater Use Potential,” “Sediment Trapping,” or “Nutrient Attenuation” shall have an indirect-impact evaluation area 100 feet wide, provided that they have a functional value index of 0.5 or less for “Ecological Integrity,” “Wetland Wildlife Habitat,” “Finfish Habitat,” or “Noteworthiness.”
(5) Freshwater wetlands that have a functional value index greater than 0.5 for “Ecological Integrity,” “Wetland Wildlife Habitat,” “Finfish Habitat,” or “Noteworthiness,” shall have an indirect-impact evaluation area 300 feet wide.
(6) Prime wetlands and tidal wetlands shall have an indirect-impact evaluation area 300 feet wide.
(7) The department may, in its discretion, establish indirect-impact evaluation areas with widths greater than those enumerated in subparagraphs (2) - (6) where necessary to address issues of special concern, including but not limited to impacts that may cause or contribute to the violation of water quality standards.
(8) The width of an indirect-impact evaluation area shall be measured on a horizontal plane from the boundary of a wetland or the bank of a surface water.
(9) Applicants shall depict in permit application materials any applicable indirect-impact evaluation area for every wetland and aquatic resource located on the property on which the project is proposed, and shall describe the analysis by which they calculated the width of such areas.
II. Applicants shall be responsible for providing information and analyses needed by the department for its assessment of direct and indirect impacts. The department shall have the authority to require additional information and analyses when it finds an applicant’s submission to be incomplete for purposes of assessing a proposed project’s impacts on wetlands and aquatic resources.
III. The following activities and project types shall be excluded from the requirements set forth in this section relative to the assessment of indirect impacts:
(a) Agriculture performed in accordance with best management practices described in RSA 483-B:3, III and involving only temporary impacts to wetlands and aquatic resources;
(b) Forestry conducted in compliance with RSA 482-A:3, V and RSA 227-J and involving only temporary impacts to wetlands and aquatic resources;
(c) Utility maintenance activities conducted in accordance with RSA 482-A:3, XV; and
(d) Projects subject to permit by notification.
IV. No later than 12 months after the effective date of this section, the department shall adopt rules pursuant to RSA 541-A establishing an evaluation methodology that shall be used in place of the New Hampshire Method referenced and used in this section for purposes of determining applicable indirect-impact evaluation area widths. The department’s rules shall ensure that under the new methodology, wetlands and aquatic resources will be assigned the same indirect-impact evaluation area widths as they would have pursuant to RSA 482-A:3-a,I(b)(2)-(5). The provisions of RSA 482-A:3-a, I(b)(6) and (7) shall not be affected by this paragraph.
V. The department may adopt rules pursuant to RSA 541-A setting forth the criteria to be used in applying its assessment of impacts, both direct and indirect, to its determinations whether to approve or deny permit applications. The department shall use its assessment of impacts, both direct and indirect, to render determinations relative to avoidance, minimization, and compensatory mitigation, and, for major and minor projects, to determine whether the project proposal is the alternative with the least adverse impact to wetlands and aquatic resources. Under no circumstances shall the department approve or conditionally approve, in whole or in part, permit applications for projects that will cause or contribute to significant degradation of the functions and values of the wetlands and other aquatic resources subject to this chapter.
VI. Nothing in this section shall be construed to require a dredge and fill permit, or a wetlands impact assessment, for projects occurring entirely outside of areas subject to the department’s jurisdiction under this chapter.
2 Effective Date. This act shall take effect 60 days after its passage.