Revision: Feb. 3, 2011, midnight
SB 154-FN – AS INTRODUCED
2011 SESSION
06/10
SENATE BILL 154-FN
AN ACT reforming the comprehensive shoreland protection act.
SPONSORS: Sen. Bradley, Dist 3; Sen. Boutin, Dist 16; Sen. Carson, Dist 14; Sen. De Blois, Dist 18; Sen. Forsythe, Dist 4; Sen. Gallus, Dist 1; Sen. Groen, Dist 6; Sen. Stiles, Dist 24; Sen. White, Dist 9; Rep. B. Patten, Carr 4; Rep. Ahlgren, Carr 4; Rep. Umberger, Carr 1; Rep. Chandler, Carr 1; Rep. Bettencourt, Rock 4
COMMITTEE: Energy and Natural Resources
This bill makes extensive changes to the comprehensive shoreland protection act.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
11-0810
06/10
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Eleven
AN ACT reforming the comprehensive shoreland protection act.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Comprehensive Shoreland Protection; Minimum Standards Required. Amend RSA 483-B:2, IX to read as follows:
IX. Control building sites, placement of structures, and land uses that may potentially damage the public waters.
2 Minimum Standards Required. Amend RSA 483-B:2, XV to read as follows:
XV. Anticipate and respond to the impacts of development in shoreland areas to the extent they may potentially damage the public waters.
3 Definitions. Amend RSA 483-B:4, VII-b to read as follows:
VII-b. “Impervious surface” means any modified surface that cannot effectively absorb or infiltrate water. Examples of impervious surfaces include, but are not limited to, roofs, and unless designed to effectively absorb or infiltrate water, decks, patios, and paved, gravel, or crushed stone driveways, parking areas, and walkways [unless designed to effectively absorb or infiltrate water].
4 Definitions. Amend RSA 483-B:4, X-b to read as follows:
X-b. “Natural ground cover” means any herbaceous plant or any woody seedling or shrub generally less than 3 feet in height. [Natural ground cover shall also include naturally occurring leaf or needle litter, stumps, decaying woody debris, stones, and boulders.] Natural ground cover shall not include lawns, landscaped areas, gardens, invasive species as listed by the department of agriculture, markets, and food in accordance with RSA 430:53, III, exotic species as designated by rule of the department of environmental services in accordance with RSA 487:24, VII, imported organic or stone mulches, or other artificial materials.
5 Definitions. Amend RSA 483-B:4, XII and XIII to read as follows:
XII. “Person” means a corporation, company, association, society, firm, partnership or joint stock company, as well as [an individual,] a state, and any political subdivision of a state or any agency or instrumentality thereof.
XIII. “Primary building line” means a setback for primary structures of [at least] 50 feet from the reference line.
6 Definitions. Amend RSA 483-B:4, XV to read as follows:
XV. “Protected shoreland” means, for natural, fresh water bodies without artificial impoundments, for artificially impounded fresh water bodies, except private garden water features and ponds, and for coastal waters and rivers, all land located within 250 feet of the reference line of public waters.
7 Definitions. Amend RSA 483-B:4, XVIII to read as follows:
XVIII. “Removal or removed” means girdled, felled, [killed, or] cut, sawed, pruned, pushed over, buried, burned, or any other activity conducted to the extent that it otherwise [destructively alters or altered] kills the vegetation.
8 Definitions. Amend RSA 483-B:4, XVIII-c to read as follows:
XVIII-c. “Replace in kind” means the substitution of a new structure for an existing legal structure, whether in total or in part, with no change within 50 feet of the reference line in [size, dimensions,] setback or area of the footprint, [interior square footage, and location,] with the exception of changes resulting in an increase in the setback to public waters.
9 Definitions. Amend RSA 483-B:4, XX-a to read as follows:
XX-a. “Shoreland frontage” means the [average of the distances of the actual natural shoreline footage and a straight line drawn between property lines] actual shoreland frontage along the water front.
10 Definitions. Amend RSA 483-B:4, XXII to read as follows:
XXII. “Structure” means anything constructed or erected for the support, shelter or enclosure of persons, animals, goods, or property of any kind, with a fixed permanent location on or in the ground, exclusive of fences.
11 Definitions. Amend RSA 483-B:4, XXIV-b to read as follows:
XXIV-b. “Unaltered state” means [native] vegetation allowed to grow without cutting, limbing, trimming, pruning, mowing, or other similar activities except as needed [to maintain the health of the plant being trimmed, as allowed by rules of the department] for plant health, normal maintenance, and renewal.
12 Enforcement by Commissioner; Duties; Woodland Buffer. Amend RSA 483-B:5, II to read as follows:
II. The commissioner or his or her designee may, [for cause,] by virtue of a permit issued under this chapter enter upon [any] subject land or parcel at any reasonable time with prior permission of the owner to perform oversight and enforcement duties provided for in this chapter limited to the conditions of the permit. Such permission shall expire when the project is complete or the permit has expired, whichever comes first.
13 Permit Required; Exemption. Amend RSA 483-B:5-b, I to read as follows:
I.(a) No person shall commence construction, excavation, or filling activities within the protected shoreland without obtaining a permit from the department to ensure compliance with this chapter. For projects which have no impact on water quality and which follow department rules, the department shall establish a permit by notification. Such projects shall include:
(1) Construction or other activity that adds less than 1,000 square feet of impervious area within a protected shoreland area.
(2) Excavation of 1,000 cubic feet or less within a protected shoreland area that does not cause a significant change in runoff protection.
(3) Filling of 1,000 cubic feet or less with material that does not cause a significant change in runoff protection.
(4) Any activities defined by rules of the department as de minimis.
(b) The permit application fee shall be $100 plus $.10 per square foot of area affected by the proposed activities and shall be deposited in the wetlands and shorelands review fund established under RSA 482-A:3, III. Such fees shall be capped as follows:
(1) For projects that qualify for permit by notification under RSA 483-B:17, X, $100 for restoration of water quality improvement projects and $250 for all other permit by notification projects.
(2) For projects of [0-9,999] 1,001 – 9.999 square feet, $750.
(3) For projects of 10,000-24,999 square feet, $1,875.
(4) For projects of 25,000 square feet or more, $3,750.
If the application is denied, the application fee shall be refunded to the applicant within 30 days of such denial.
14 Permit Required; Exemption. Amend RSA 483-B:5-b, V(a) through (c) to read as follows:
V.(a) Within [30] 15 days of receipt of an application for a permit or [75] 30 days of receipt of an application for a permit that will require a [variance of the minimum standard of RSA 483-B:9, V or a] waiver of the minimum standards of RSA 483-B:9, the department shall request any additional information reasonably required to complete its evaluation of the application, and provide the applicant with any written technical comments the department deems necessary. Any request for additional information shall specify that the applicant submit such information as soon as practicable and notify the applicant that if all of the requested information is not received within [60] 180 days of the request, the department shall deny the application.
(b) When the department requests additional information pursuant to subparagraph (a), the department shall, within [30] 15 days of the department’s receipt of the information:
(1) Approve the application[, in whole or in part,] and issue a permit; or
(2) Deny the application, and issue written findings in support of the denial; or
(3) Extend the time for rendering a decision on the application for good cause and with the written agreement of the applicant.
(c) Where no request for additional information is made, the department shall, within [30] 15 days of receipt of the application for a permit or [75] 30 days of receipt of an application for a permit that will require a [variance of the minimum standard of RSA 483-B:9, V or a] waiver of the minimum standards of RSA 483-B:9[:],
[(1)] approve or deny the application[, in whole or in part, and issue a permit; or
(2) Deny the application, and issue] with written findings in support of the [denial; or
(3) Extend the time for rendering a decision on the application for good cause and with the written agreement of the applicant] decision.
15 Minimum Shoreland Protection Standards. Amend RSA 483-B:9, II(d) to read as follows:
(d) No fertilizer, except limestone or organic fertilizer, shall be applied to vegetation or soils located within 25 feet of the reference line of any public water. Low phosphate, slow release nitrogen fertilizer [or] limestone, or organic fertilizer, may be used on areas beyond 25 feet from the reference line.
16 Minimum Shoreland Protection Standards. Amend RSA 483-B:9, V(a) through (b)(2)(A)(iii) to read as follows:
(a) Maintenance of a Waterfront Buffer.
(1) The waterfront buffer shall be those protected shorelands within 50 feet of the reference line. The purpose of this buffer shall be to protect the quality of public waters while allowing homeowner discretion with regard to water access, safety, viewscape maintenance, and lot design.
(2) Within the waterfront buffer all of the following prohibitions and limitations shall apply:
(A) No chemicals, including pesticides or herbicides of any kind shall be applied to ground, turf, or established vegetation except if applied by horticultural professionals or 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) unless such application is necessary to protect the waterfront buffer, and provided such materials do not enter the protected waterway.
(B) Rocks and stumps and their root systems shall be left intact in the ground unless removal is specifically approved by the department, pursuant to RSA 482-A or RSA 483-B:11, II or unless rocks are removed to improve runoff control or the planting in the waterfront buffer, and stumps that are removed are replaced with pervious surfaces, new trees, or other vegetation.
(C) No natural ground cover shall be removed except as necessary for a foot path to water as provided under RSA 483-B:9, V(a)(2)(D)[(viii)] (ix), for normal maintenance, to protect the waterfront buffer, cutting those portions that have grown over 3 feet in height for the purpose of providing a view, to provide access to natural areas or shoreline, or as specifically approved by the department, pursuant to RSA 482-A or RSA 483-B.
(D) Starting from the northerly or easterly boundary of the property, and working along the shoreline, the waterfront buffer shall be divided into 50 by 50 foot segments excluding structures, beaches, and rock and ledge areas. Within each segment a minimum combined tree [and], sapling, shrub, and groundcover score of at least 50 points shall be maintained. If for any reason there is insufficient area for a full segment, the number of points required to be maintained in that partial segment shall be proportional to that required of a full segment. The landowner may meet the total point requirement over the entire frontage of the lot by distributing the score in the most practical way so that the total points achieved are equal to or greater than the total compiled by using the 50 by 50 foot segments.
(i) Tree and sapling [diameters] calipers shall be measured [at 4 1/2 feet above the ground] in accordance with nursery industry standards and are scored as follows:
Diameter Score
[1 inch to 6 inches 1
greater than 6 inches to 12 inches 5
greater than 12 inches 10]
1 to 3 inches – 1
3 to 6 inches – 5
6 to 12 inches – 10
12 to 24 inches – 20
24 to 36 inches – 30
Greater than 36 inches – 50
(ii) Shrubs and groundcover plants shall be scored as follows:
One-gallon to 2-gallon shrub - 1/2 of a point
Three-gallon to 4-gallon shrub - one point
Ground cover planted in the form of sod or mat – one point for every 50 square feet
Sod or mat ground cover - no more than 15 points in each full segment
Shrub groundcover - no more than 20 points in each full segment
[(ii)] (iii) Dead, diseased, or unsafe trees or saplings shall not be included in scoring.
[(iii)] (iv) If the total tree and sapling score in any 50 foot by 50 foot segment exceeds 50 points, then trees and saplings may be removed as long as the sum of the scores for the remaining trees and saplings in that segment does not total less than 50 points. Trees and saplings may be removed from partial segments provided that the sum of the scores for the remaining trees and saplings in that partial segment is equal to or greater than the proportional point requirement.
[(iv)] (v) The department may approve applications pursuant to RSA 482-A or RSA 483-B that include the planting of [native] trees and saplings as necessary to at least maintain either the existing combined tree and sapling score or the minimum score required. [The department shall not approve any] No application [that would] shall result in a combined tree and sapling score less than the minimum score required where the segment initially meets the minimum score or would result in any reduction of the combined tree and sapling score where the segment does not initially meet the minimum score, unless the applicant is increasing the combined tree and sapling score in other segments of the protected shoreland.
[(v)] (vi) Owners of lots and holders of easements on lots that were legally developed prior to July 1, 2008 may maintain but not enlarge cleared areas, including but not limited to existing lawns, gardens, landscaped areas, beaches, and rights-of-way for public utilities, public transportation, and public access, and may repair existing utility structures within the waterfront buffer. Conversion to or planting of cleared areas with [native] non-invasive species of ground cover, shrubs, saplings, and trees is encouraged but shall not be required unless it is necessary to meet the requirements of subparagraph (g)(2) or (g)(3), or RSA 483-B:11, II.
[(vi)] (vii) Normal trimming, pruning, and thinning of branches to the extent necessary to maintain the health of the [plant being trimmed,] planted area as well to protect structures, maintain clearances, and provide views is permitted, [as allowed by rules of the department. Limbing of trees or saplings for the purpose of providing views shall be limited to the bottom 1/2 of the trees or saplings] provided such activity does not endanger the health of the plant.
[(vii)] (viii) When necessary for the completion of construction activities permitted in accordance with RSA 483-B:6, a temporary 12 foot wide access path shall be allowed. On those properties accessible only by water, this access path may be maintained provided it is stabilized with a surface that will infiltrate stormwater. On other properties the access path shall be completely restored and replanted with native vegetation upon completion of construction except as allowed under subparagraph (viii).
[(viii)] (ix) A permanent 6-foot wide foot path [to provide] as well as access to any beaches, structures, existing open areas, and the water body, configured in a manner that will not concentrate storm water runoff or contribute to erosion, [is] are allowed.
(b) Maintenance of a Natural Woodland Buffer.
(1) A natural woodland buffer shall be maintained within 150 feet of the reference line. The first 50 feet of this buffer is designated the waterfront buffer and is subject to the additional requirements of subparagraph (a). The purpose of the natural woodland buffer shall be to protect the quality of public waters by minimizing erosion, preventing siltation and turbidity, stabilizing soils, preventing excess nutrient and chemical pollution, maintaining natural water temperatures, maintaining a healthy tree canopy and understory, preserving fish and wildlife habitat, and respecting the overall natural condition of the protected shoreland.
(2) Within the natural woodland buffer of a given lot:
(A)(i) To the extent that it is already in a natural, unlandscaped state, for lots with [one-half] one acre or less of land within the natural woodland buffer, the vegetation within at least [25] 20 percent of the area [outside] including the waterfront buffer and exclusive of impervious surfaces shall be maintained in an unaltered state unless vegetation, including shrubs and trees in the landscaped areas, exceeds the 20 percent requirement. Owners of lots legally developed or landscaped 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 not being developed shall not be decreased.
(ii) To the extent that it is already in a natural, unlandscaped state, for lots with greater than [one-half] one acre but less than 2 acres of land within the natural woodland buffer, the vegetation within at least [50] 30 percent of the area [outside] including the waterfront buffer[,] and exclusive of impervious surfaces, shall be maintained in an unaltered state unless vegetation, including shrubs and trees in the landscaped areas, exceeds the 30 percent requirement. Owners of lots legally developed or landscaped 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 not being redeveloped shall not be decreased.
(iii) To the extent that it is already in a natural, unlandscaped state, for lots with greater than 2 acres of land within the natural woodland buffer, the vegetation within at least 50 percent of the area, including the waterfront buffer and exclusive of impervious surfaces, shall be maintained in an unaltered state unless vegetation, including shrubs and trees in the landscaped areas, exceeds the 50 percent requirement. Owners of lots legally developed prior to July 1, 2008 that do not comply with this standard may increase the percentage of area maintained in an unaltered state. The percentage of area maintained in an unaltered state on nonconforming lots not being redeveloped shall not be decreased.
17 Minimum Lots and Residential Development. Amend RSA 483-B:9, V(e)(3) to read as follows:
(3) No lot having frontage on public waters, shall be created with less than [150] 50 feet of shoreland frontage.
18 Minimum Lots and Non-Residential Development. Amend RSA 483-B:9, V(f)(2) to read as follows:
(2) No lot having frontage on public water shall be created with less than [150] 50 feet of shoreland frontage.
19 Impervious Surfaces. Amend RSA 483-B:9, V(g)(1)-(3) 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 unless a stormwater management system designed and certified by a professional engineer that will not concentrate stormwater runoff or contribute to erosion is implemented.
(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.
[(3) If the impervious surface area will exceed 20 percent and 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).]
20 Waivers. Amend RSA 483-B:9, V(i) to read as follows;
(i) The commissioner shall have the authority to grant [variances] waivers from the minimum standards of this section. Such authority shall be exercised [subject to the criteria which govern the grant of a variance by a zoning board of adjustment under RSA 674:33, I(b)] if the commissioner deems that strict compliance with the minimum standards of this section will provide no material benefit to the public and have no material adverse effect on the environment or the natural resources of the state. Waivers shall be granted to accommodate the reasonable needs of persons with disabilities.
21 Nonconforming Lots of Record. Amend RSA 483-B:10, I to read as follows:
I. Except when otherwise prohibited by law, present and successive owners of an individual undeveloped lot may construct a single family residential dwelling and appurtenant accessory structures on it, notwithstanding the provisions of this chapter. Conditions may be imposed which, in the opinion of the commissioner, more nearly meet the intent of this chapter, while still accommodating the applicant’s rights.
22 New Paragraph; Nonconforming Lots of Record; Merger. Amend RSA 483-B:11 by inserting after paragraph II the following new paragraph:
III. Consistent with RSA 674:39-a, a municipality shall not merge adjacent nonconforming lots in common ownership without the consent of the owner.
23 Nonconforming Structures. RSA 483-B:11 is repealed and reenacted to read as follows:
483-B:11 Nonconforming Structures.
I. Except as otherwise prohibited by law or applicable municipal ordinance, nonconforming structures located within the protected shoreland may be repaired, replaced in kind, reconstructed in place, altered, or expanded. Repair, replacement-in kind, or reconstruction in place may alter or remodel the interior design or existing foundation of the nonconforming structure, but shall result in no expansion or relocation of the existing footprint within the waterfront buffer. Alteration or expansion of a nonconforming structure may expand the existing footprint within the waterfront buffer, provided the structure is not extended closer to the reference line and the proposal or property is made more nearly conforming than the existing structure or the existing conditions of the property.
II. For the purposes of this section, a proposal that is “more nearly conforming” means alteration of the location or size of the existing footprints, or redevelopment of the existing conditions of the property, such that the structures or the property are brought into greater conformity with the design standards of this chapter. Methods for achieving greater conformity include, without limitation, reducing the overall square footage of structural footprints, enhancing stormwater management, adding infiltration areas and landscaping, upgrading wastewater treatment, improving traffic management, or other enhancements that improve wildlife habitat or resource protection.
III. An expansion that increases the sewerage load to an onsite septic system, or changes or expands the use of a septic system, shall require a subsurface approval issued by the department.
IV. Under paragraph I, and except as otherwise prohibited by law or applicable municipal ordinance, primary nonconforming structures may be entirely demolished and reconstructed, with continued encroachment into the waterfront buffer, provided the replacement structure is located farther back from the reference line than the preexisting nonconforming structure.
24 Rehearings and Appeals. Amend RSA 483-B:14 to read as follows:
483-B:14 Rehearings and Appeals. Where the requirements of this chapter amend the existing statutory authority of the department or other agencies relative to certain established regulatory programs and shall be enforced under these established regulatory programs, the existing procedures governing contested cases and hearings and appeals regarding these requirements shall apply. Where requirements of this chapter are new and do not amend existing statutory authority relative to any established regulatory programs, the procedures set forth in RSA 541-A:31 for contested cases shall apply. The landowner, however, shall have a right to appeal any disagreement with the department to the shoreland advisory committee established under RSA 483-B:21, at least 1/2 the members of which shall be shoreland owners.
25 Rulemaking. Amend RSA 483-B:17, IV to read as follows:
IV. Procedures and criteria for the size[,] and placement[, and construction] of small accessory structures such as storage sheds and gazebos, which are consistent with the intent of this chapter, between the reference line and the primary building line.
26 Penalties. Amend RSA 483-B:18, II and III to read as follows:
II. Any person who knowingly violates this chapter and any person who purchases land affected by a violation of this chapter who knew or had reason to know of the violation shall be liable for remediation or restoration of the land affected.
III. Persons intentionally violating the provisions of this chapter and damaging the public waterway who, after notification by the department, fail to make a good faith effort at remediation and restoration shall be subject to the following:
(a) Upon petition of the attorney general or of the municipality in which the violation occurred, the superior court may levy upon any person knowingly violating this chapter a civil penalty in an amount not to exceed [$20,000] $5,000 for [each day of] each continuing violation. The superior court shall have jurisdiction to restrain a continuing violation of this chapter, and to require remediation.
[(b) Any person who knowingly violates any provision of this chapter, or any rule adopted or order issued under this chapter or any condition of any permit issued under this chapter shall be guilty of a misdemeanor if a natural person, or guilty of a felony if any other person, and, notwithstanding RSA 651:2, may in addition to any sentence of imprisonment, probation or conditional discharge, be fined not more than $20,000 for each violation if found guilty pursuant to this section. [Each day of violation shall constitute a separate offense.]
[(c)] (b) The commissioner, after notice and hearing pursuant to RSA 541-A, shall impose an administrative fine of up to $5,000 for each offense upon any person who knowingly violates this chapter. Rehearings and appeals relating to such fines shall be governed by RSA 541. Imposition of an administrative fine under this section shall not preclude the imposition of further civil or criminal penalties under this chapter.
[(d)] (c) Notwithstanding the $5,000 fine limit in subparagraph (c), the administrative fine for each repeat violation of this chapter may be multiplied by a factor of 2 for every previous violation knowingly committed by the person or entity.
27 Permit Application Fees; Effective Date. Amend 2008, 5:28, II to read as follows:
II. Paragraph I of section 27 of this act shall take effect July 1, [2011] 2016.
28 Repeal. The following are repealed:
I. RSA 483-B:6, I(c) relative to permits for installation of septic systems.
II. RSA 483-B:9, V(c)(1), relative to subdivision of land within the protected shoreland.
III. RSA 483-B:9. V(g)(3), relative to impervious surfaces.
29 Effective Date. This act shall take effect 60 days after its passage.
LBAO
11-0810
02/02/11
SB 154-FN - FISCAL NOTE
AN ACT reforming the comprehensive shoreland protection act.
FISCAL IMPACT:
Due to time constraints, the Office of Legislative Budget Assistant is unable to provide a fiscal note for this bill at this time. When completed, the fiscal note will be forwarded to the Senate Clerk's Office.