Bill Text - SB142 (2012)

Relative to reorganizing the permitting process within the department of environmental services.


Revision: May 21, 2012, midnight

SB 142-FN – AS AMENDED BY THE HOUSE

01/18/12 0186s

25Apr2012… 1689h

25Apr2012… 1833h

17May2012… 2069h

17May2012… 2327h

2011 SESSION

11-1067

08/09

SENATE BILL 142-FN

AN ACT relative to reorganizing the permitting process within the department of environmental services, relative to the mental health services system, and repealing the law relative to reviewing Medicaid reimbursement rates.

SPONSORS: Sen. Odell, Dist 8; Sen. Luther, Dist 12

COMMITTEE: Energy and Natural Resources

AMENDED ANALYSIS

This bill establishes an integrated land development permit option that may be sought at the discretion of the applicant as an alternative to applying for multiple land development permits from the department of environmental services.

This bill authorizes the commissioner of the department of health and human services to contract with any entity to provide essential mental health services in any part of the state.

This bill also repeals the law requiring the department of health and human services to review Medicaid reimbursement rates.

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

01/18/12 0186s

25Apr2012… 1689h

25Apr2012… 1833h

17May2012… 2069h

17May2012… 2327h

11-1067

08/09

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Eleven

AN ACT relative to reorganizing the permitting process within the department of environmental services, relative to the mental health services system, and repealing the law relative to reviewing Medicaid reimbursement rates.

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

1 New Chapter; Integrated Land Development Permit. Amend RSA by inserting after chapter 488 the following new chapter:

CHAPTER 489

INTEGRATED LAND DEVELOPMENT PERMIT

489:1 Purpose. This chapter is intended to:

I. Establish an integrated land development permit option that may be sought, at the discretion of the applicant, as an alternative to seeking one or more individual land development permits or approvals issued by the department of environmental services.

II. Provide a coordinated approach and holistic perspective in regulating land development activities to protect the quality and functions of New Hampshire’s natural environment.

III. Establish an alternative project review and permitting process to improve communication and coordination between multiple organizations and entities involved in the permitting of proposed projects.

IV. Establish a structured pre-application process to provide enhanced guidance earlier in the project design process to facilitate compliance and improved environmental performance.

V. Encourage and facilitate implementation of environmentally superior projects.

VI. Recognize that the degree of relatedness of the affected programs presents a unique opportunity to achieve efficiencies and savings that are not possible to achieve by similar means within the other programs administered by the department.

489:2 Definitions. In this chapter:

I. “Abutter” means any person who owns land immediately contiguous to the subject property or who owns flowage rights on such land. The term does not include the owner of any land that is separated by a public road or public waterway from the subject property or, in the absence of a public road or waterway, is more than ¼-mile from the limits of the proposed work. If any land that is immediately contiguous to the subject property is owned in whole or in part by the person who is proposing the work or is necessary to meet any frontage requirement, the term includes the person owning the next contiguous property.

II. “Affected programs” means the following programs implemented by the department:

(a) The terrain alteration program established under RSA 485-A:17 and rules adopted pursuant thereto;

(b) The subdivision and individual sewage disposal systems program established under RSA 485-A:29 through RSA 485-A:44 and rules adopted pursuant thereto;

(c) The wetlands program established under RSA 482-A and rules adopted pursuant thereto; and

(d) The shoreland water quality protection program established under RSA 483-B and rules adopted pursuant thereto.

III. “Applicant” means the person who initiates the application process for an integrated land development permit. If the applicant is not the owner of the property on which the project is proposed to occur, the applicant shall be authorized in writing by the property owner to undertake all actions and representations required under this chapter.

IV. “Department” means the department of environmental services.

V. “Integrated land development permit” means a single permit issued by the department in lieu of issuing separate permits or approvals under one or more of the affected programs.

VI. “Permittee” means a person who obtains an integrated land development permit under this chapter.

VII. “Subject property” means the property on which a project is proposed.

489:3 Authorization.

I. There is hereby established an integrated land development permit, for which application may be made as an alternative to applying for separate, individual permits or approvals under the affected programs.

II. Municipalities may review materials and provide written comment to the department. At the request of an applicant, municipalities may schedule site visits, attend meetings, or participate in discussions with or otherwise engage the department during any or all phases of the integrated land development permit process.

III. If administrative requirements or procedures contained in this chapter, or adopted by rule to execute this chapter, conflict with administrative requirements or procedures of any other statute or rule implemented by the department, the provisions under this chapter shall apply.

IV. The time limits prescribed in this chapter, or adopted by rule to execute this chapter, shall supersede any time limits provided in any other applicable provision of law.

V. Electronic communications and electronic document management may be employed to facilitate correspondence, application, notification, and coordination under this chapter.

VI. Submission of materials for the pre-application technical review under RSA 489:6, II or for final application under RSA 489:7 shall constitute the property owner’s express authorization for the department, through its agents or employees and with at least one business day’s notice or less, if agreed to by the owner, to enter upon the property that is the subject of the application for purposes of evaluating site conditions and the application made under this chapter.

489:4 Applicability.

I. Any person who wishes to conduct an activity requiring a permit or other approval from the department under 2 or more of the affected programs may choose to apply for an integrated land development permit from the department in lieu of all individual program permits or approvals otherwise required under the affected programs, subject to the following conditions and limitations:

(a) All permits or approvals otherwise required under the applicable affected programs shall be included in the integrated land development permit.

(b) No person shall be eligible under this chapter if the person is the subject of a state administrative, civil, or criminal enforcement action for violating this chapter or any of the affected programs at the time of initiating the application process.

(c) No person shall be eligible under this chapter if the person was the subject of a state administrative, civil, or criminal enforcement action for violating this chapter or any of the affected programs within the 5 years prior to initiating the application process, unless the action was withdrawn or overturned on appeal.

(d) No property shall be eligible under this chapter if the property is or has been the subject of an administrative enforcement action for violations of this chapter or any of the affected programs, unless the violations have been remediated or will be remediated as part of the proposed project and any outstanding fees, fines, and penalties assessed against the same person who owns the property at the time of the application have been paid in full.

(e) No property shall be eligible under this chapter without the prior consent of the attorney general if the property is, at the time of initiating the application process, or has been, within the 5 years prior to initiating the application process, the subject of a civil or criminal enforcement action for violations of this chapter or any of the affected programs. This subparagraph shall not apply to any action that was withdrawn or overturned on appeal.

(f) This chapter shall not apply if any of the work that is part of the project, other than preliminary site evaluation activities such as surveys or test pits not requiring a permit from the department, has been initiated or completed prior to the application process being initiated.

(g) This chapter shall not apply to permits for shoreline structures unless they are part of a larger project.

(h) This chapter shall not apply to emergency authorizations.

II. For projects that would otherwise require only a single permit from the department under the affected programs, the applicant may request a waiver of the requirement for 2 or more permits provided the project incorporates low-impact or minimum-impact design practices and the applicant demonstrates that the proposed project will achieve a superior overall environmental outcome in accordance with the requirements and procedures specified in RSA 489:9.

489:5 Conceptual Preliminary Discussions. Any person interested in pursuing an integrated land development permit may consult with the department regarding the applicable procedures and requirements. Applicants may request and participate in conceptual pre-application discussions with the department prior to initiating the formal pre-application technical review process under RSA 489:6, II. Such conceptual pre-application discussions shall not replace the formal pre-application technical review process.

489:6 Pre-Application Technical Review.

I. An applicant shall initiate the integrated land development permit process by conducting certain activities, as specified by the department in rules adopted under this chapter, in preparation for pre-application technical review by the department. These activities shall include the following:

(a) Inquiry or consultation with the department of resources and economic development’s natural heritage bureau and the department of fish and game;

(b) Notification of and provision of materials on the proposed project to the governing body, the planning department, the planning board, and conservation commission of the municipality or municipalities in which the proposed project is located;

(c) Notification of and provision of materials on the proposed project to the local river management advisory committee, when the project is in the corridor of a designated river or river segment under RSA 483;

(d) Notification of and consultation with federal regulatory entities, when applicable;

(e) Notification of, and, when requested, provision of materials on the proposed project to the New Hampshire division of historic resources;

(f) Assessment of site characteristics and location, as defined by the department in rules adopted under this chapter; and

(g) Other assessments, inquiries, notifications, and consultations as defined by the department in rules adopted under this chapter.

II. After conducting the activities required under paragraph I the applicant shall submit to the department such materials as the department requires under rules adopted pursuant to RSA 541-A. The department may require the applicant to pay up to 30 percent of the expected final application fee under RSA 489:7, I to cover departmental costs associated with the pre-application technical review. Any payment made shall be applied towards the final application fee. Such payment shall not be refundable or transferrable to another project should a final permit application not be submitted.

III. The applicant shall participate in a pre-application technical review with the department.

IV. As part of the pre-application technical review, the department shall review preliminary design plans, supporting information, and advisory input from state or federal entities notified or consulted pursuant to paragraph I and comments received from other persons notified pursuant to paragraph I to identify critical issues regarding site development and design, any requested waivers, and any mitigation that may be needed, and review the final permit application requirements with the applicant.

V. The department may request that any state or federal entities notified under paragraph I, participate in pre-application technical review discussions. Other persons or entities may be included at the request of the applicant.

VI. The pre-application technical review process shall not establish any presumption as to whether the department will approve the final application.

489:7 Submission and Review of Final Application.

I. Following the pre-application technical review, the applicant shall submit a complete application, as defined by the department in rules, together with the application fee, which shall be equal to the total of the permit fees specified in statute and in rules for each of the individual permits or approvals being replaced by the integrated land development permit, to the department. The proposed activities shall not be undertaken unless and until the applicant receives a permit from the department.

II. Within 14 days of receipt of the application, the department shall notify the applicant whether the application is complete or not. Incomplete applications shall not be accepted and shall be returned, along with the fee, to the applicant to be made complete and resubmitted to the department.

III. Concurrent with the submission of the final application to the department, the applicant shall:

(a) Provide a complete copy of the final application and all supporting materials, by certified mail or other delivery method that provides proof of receipt, to the municipality, or if applicable, municipalities in which the project is located and, when applicable, the local river management advisory committee or committees.

(b) Notify all abutters by certified mail or other delivery method that provides proof of receipt regarding the application. If any question arises as to whether all abutters were notified, the burden shall be on the applicant to show that notification was made.

IV. The department shall apply the technical criteria established in the affected programs.

V. The department may waive, in accordance with RSA 489:9, any technical criteria established by statute or rule under the affected programs, if such waiver is necessary to achieve a superior overall environmental outcome, or achieve an equivalent overall environmental outcome at reduced cost.

VI. Within 45 days of receiving a complete application, the department shall:

(a) Approve the application and issue a permit, which shall include such conditions as the department deems necessary to comply with this chapter or rules adopted under this chapter;

(b) Deny the application and issue written findings in support of the denial;

(c) Identify the need for and schedule a public hearing on the proposed project, and within 30 days of the public hearing approve or deny the application in accordance with subparagraph (a) or (b); or

(d) Extend the time for rendering a decision on the application for good cause and with the written agreement of the applicant.

VII. If the department fails to act within the applicable time frame established in this section, the applicant may ask the department to issue the permit by submitting a written request. If the applicant has previously agreed to accept communications from the department by electronic means, a request submitted electronically by the applicant shall constitute a written request.

(a) Within 14 days of the date of receipt of a written request from the applicant to issue the permit, the department shall:

(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.

(b) If the department does not issue either a permit or a written denial within the 14-day period, the applicant shall be deemed to have a permit by default and may proceed with the project as presented in the application. The authorization provided by this subparagraph shall not relieve the applicant of complying with all requirements applicable to the project, including but not limited to requirements established in or under this chapter and any chapter relating to the applicable affected programs.

(c) Upon receipt of a written request from an applicant, the department shall issue written confirmation that the applicant has a permit by default pursuant to subparagraph (b), which authorizes the applicant to proceed with the project as presented in the application and requires the work to comply with all requirements applicable to the project, including but not limited to requirements established in or under this chapter and any chapter relating to the applicable affected programs.

VIII. The department shall adopt rules, under RSA 541-A regarding terms and conditions for any permit issued under this chapter to ensure compliance with this chapter and the affected programs.

489:8 Rulemaking. The commissioner of the department shall adopt rules under RSA 541-A relative to:

I. Requirements and procedures for the pre-application process and technical review, including requirements for notification of and coordination with municipalities, other state and federal agencies, local river management advisory committees, and other entities.

II. Application requirements and procedures for processing a final application for an integrated land development permit, including requirements for notification of and coordination with municipalities, other state and federal agencies, local river management advisory committees, and other entities.

III. Applicability of technical criteria of the affected program.

IV. Time extensions and duration of a permit, and procedures and requirements for amending a permit issued pursuant to this chapter which shall be in conformance with the statute and rules of the affected programs.

V. Procedures and requirements for projects requiring a public hearing.

VI. Terms and conditions for permits issued under this chapter to ensure compliance with this chapter and affected programs.

489:9 Waivers.

I. No waiver from any affected program’s requirement in rule or statute shall be granted unless the applicant requesting the waiver demonstrates that there will be:

(a) No substantial loss of wetland functions and values;

(b) No additional degradation of water quality of impaired surface waters or outstanding resource waters; and

(c) A superior overall environmental outcome or an equivalent overall environmental outcome at reduced cost.

II. The demonstration required by paragraph I shall be made based on project design, mitigation, submission of modeling results, engineering calculations, relevant scientific studies, or such other documentation the applicant believes supports the requested waiver.

III. No waiver shall be granted if doing so results in a violation of any federal requirement or any state statute outside those governing the affected programs, unless the state statute expressly provides that the provisions may be waived.

IV. Municipalities may grant a variance of zoning under RSA 674:33, I(b), or waive land use regulations under RSA 674:44, III(e) or RSA 674:36, II(n), or adopt an innovative land use control ordinance pursuant to RSA 674:21, to allow a project to proceed as approved by the department under this chapter.

489:10 Appeals.

I. Any person aggrieved by a decision made under RSA 489:7, V, VI(a) or (b), or VII, and any person subject to an order of the department under RSA 489:12 who wishes to appeal shall, within 30 days of the decision, file a notice of appeal with the appeals clerk for a hearing before a joint water-wetland council described in paragraph II. At the time the notice of the appeal is filed, the person shall send a copy of the appeal to the commissioner. If the appeal is of a decision to issue a permit, the person shall also send a copy of the appeal to the permittee. The notice of appeal shall clearly state that it is being filed pursuant to this paragraph.

II. Upon receipt of a notice of appeal filed pursuant to paragraph I, the appeals clerk shall notify the chairman of the water council established under RSA 21-O:7 and the chairman of the wetlands council established under RSA 21-O:5-a. The chairmen shall each designate 4 members of their respective councils to sit with a hearing officer appointed under RSA 21-M:3, VIII as a joint council for purposes of the appeal. The council members appointed shall represent a diversity of environmental, business, and public health interests.

III. The appeal 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 joint council.

IV. The joint council shall conduct an adjudicative proceedings as provided in RSA 21-M:3, IX and X, RSA 21-O:14, RSA 541-A, and rules to be adopted by both of the councils for appeals to be heard by the joint council. Until both of the councils have adopted the same rules, the rules of the wetlands council shall apply to any appeal. 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. All findings of the department upon all questions of fact properly before it shall be prima facie lawful and reasonable.

V. If the appeal is of a decision to issue a permit, the permittee may appear and become a party to the appeal as a matter of right. Requests by any other person to intervene in any appeal shall be made and decided upon as provided in RSA 541-A:32.

VI. On appeal, the joint 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. In either case, the council shall specify the factual and legal basis for its determination and shall identify evidence in the record created before the council that supports its decision.

VII. Any party aggrieved by a decision of the joint council may apply to the joint council for reconsideration as specified in RSA 541.

VIII. Any party aggrieved by a decision of the joint council after reconsideration may appeal to the supreme court as specified in RSA 541.

IX. In the case of a remand to the department by the joint council, the department shall consider the council’s determination and may either reissue the subject decision or order or appeal as provided in paragraphs VII and VIII.

489:11 Compliance.

I. The following shall constitute noncompliance with this chapter:

(a) Failure to comply with this chapter or any rule adopted or permit issued under this chapter.

(b) Failure to comply with an order of the commissioner issued relative to this chapter or any rule adopted or permit issued under this chapter.

(c) Misrepresentation by any person of a material fact made in connection with any application filed under this chapter or any permit issued under this chapter.

II. The permittee shall be responsible for ensuring that all work done under the permit complies with the permit and all other applicable requirements. Any person who performs work under an integrated land development permit shall comply with the permit and all other applicable requirements.

III. The department may issue a written order to any person in noncompliance with this chapter as specified in paragraph I to cease any continuing noncompliance and to remediate or restore any land or water areas affected by the noncompliance.

IV. Any noncompliance with this chapter as specified in paragraph I may be enjoined by the superior court upon application of the attorney general.

V. Any person who knowingly fails to comply with this chapter as specified in paragraph I shall be subject to all remedies available under law in the applicable affected programs. For purposes of this paragraph, a permit issued under this chapter shall constitute a permit issued under each of the applicable affected programs.

2 Planning Board Procedures. Amend RSA 676:4, I(b) to read as follows:

(b) The planning board shall specify by regulation what constitutes a completed application sufficient to invoke jurisdiction to obtain approval. A completed application means that sufficient information is included or submitted to allow the board to proceed with consideration and to make an informed decision. A completed application sufficient to invoke jurisdiction of the board shall be submitted to and accepted by the board only at a public meeting of the board, with notice as provided in subparagraph (d). An application shall not be considered incomplete solely because it is dependent upon submission of an application to or the issuance of permits or approvals from other governmental bodies; however, the planning board may condition approval upon the receipt of such permits or approvals in accordance with subparagraph (i). The applicant shall file the application with the board or its agent at least 15 days prior to the meeting at which the application will be accepted. The application shall include the names and addresses of the applicant, all holders of conservation, preservation, or agricultural preservation restrictions as defined in RSA 477:45, and all abutters as indicated in the town records for incorporated towns or county records for unincorporated towns or unorganized places not more than 5 days before the day of filing. Abutters shall also be identified on any plat submitted to the board. The application shall also include the name and business address of every engineer, architect, land surveyor, or soil scientist whose professional seal appears on any plat submitted to the board.

3 New Paragraph; Powers of the Zoning Board of Adjustment. Amend RSA 674:33 by inserting after paragraph V the following new paragraph:

VI. The zoning board of adjustment shall not require submission of an application for or receipt of a permit or permits from other governmental bodies prior to accepting a submission for its review or rendering its decision.

4 Conservation Commission; Powers. Amend RSA 36-A:4 to read as follows:

36-A:4 Powers.

I. Said commission may receive gifts of money, personal property, real property, and water rights, either within or outside the boundaries of the municipality, by gift, grant, bequest, or devise, subject to the approval of the local governing body, such gifts to be managed and controlled by the commission for the purposes of this section. Said commission may acquire in the name of the city or town, subject to the approval of the local governing body, by purchase, the fee in such land or water rights within the boundaries of the municipality, or any lesser interest, development right, easement, covenant, or other contractual right including conveyances with conditions, limitations, or reversions, as may be necessary to acquire, maintain, improve, protect, or limit the future use of or otherwise conserve and properly utilize open spaces and other land and water areas within their city or town, and shall manage and control the same, but the city or town or commission shall not have the right to condemn property for these purposes.

II. The conservation commission, in reviewing an application to provide input to any other municipal board, shall not require submission of an application for or receipt of a permit or permits from other governmental bodies prior to accepting a submission for its review or providing such input.

5 New Subparagraph; Innovative Land Use Controls. Amend RSA 674:21, I by inserting after subparagraph (n) the following new subparagraph:

(o) Integrated land development permit option.

6 New Paragraph; Innovative Land Use Controls. Amend RSA 674:21 by inserting after paragraph VI the following new paragraph:

VII. In this section, “integrated land development permit option” means an optional land use control to allow a project to proceed, in whole or in part, as permitted by the department of environmental services under RSA 489.

7 Appeals Clerk. Amend RSA 21-O:3, the introductory paragraph of VIII and the introductory paragraph of RSA 21-O:3, VIII(a) to read as follows:

VIII. Provide all necessary clerical and technical support to any council established by this chapter or the joint council established in RSA 489. At a minimum, the commissioner shall:

(a) For any appeal from a department decision before any such council provide all necessary clerical and support personnel and services, including an appeals clerk, in order to:

8 Community Mental Health Programs. Amend RSA 135-C:7 to read as follows:

135-C:7 Community Mental Health Programs. Any city, county, town, or nonprofit corporation may establish and administer a community mental health program for the purpose of providing mental health services to individuals and organizations in the area. Every program shall, at a minimum, provide emergency, medical or psychiatric screening and evaluation, case management, and psychotherapy services. The department may contract with a community mental health program, or any individual, partnership, association, public or private, for-profit or nonprofit, agency or corporation, pursuant to RSA 135-C:3, for the operation and administration of any services which are part of the state mental health services system. In the event that the commissioner decides to enter into a contract for the operation and administration of any services which are part of the state mental health services system, the contract shall contain standards designed to measure the performance of the contractor in achieving positive consumer outcomes, maintaining fiscal integrity, and providing quality services.

9 Mental Health Services System; Eligibility of programs; Rulemaking. Amend the introductory paragraph of RSA 135-C:10, I to read as follows:

I. The commissioner shall adopt rules, pursuant to RSA 541-A, relative to the criteria and the process of approval [by the director] of community mental health programs for their eligibility to:

10 New Paragraph; Mental Health Services System; Monitoring. Amend RSA 135-C:10 by inserting after paragraph IV the following new paragraph:

V. Notwithstanding any provision of law or rule to the contrary, if the commissioner determines that it is necessary to insure provision of essential mental health services in any part of the state, the commissioner may approve any entity to carry out the functions described in RSA 135-C:10, I.

11 Repeal. RSA 126-A:18-b, relative to Medicaid reimbursement rates, is repealed.

12 Effective Date.

I. Sections 1, 5, and 6 of this act shall take effect January 1, 2015.

II. Sections 2-4 and 7 of this act shall take effect 60 days after its passage.

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

LBAO

11-1067

Amended 05/10/12

SB 142 FISCAL NOTE

AN ACT relative to reorganizing the permitting process within the department of environmental services, relative to the mental health services system, and repealing the law relative to reviewing Medicaid reimbursement rates.

FISCAL IMPACT:

      The Department of Environmental Services states this bill, as amended by the House (Amendments #2012-1833h and #2012-1689h), may increase state expenditures by an indeterminable amount in FY 2015 and each year thereafter. The New Hampshire Municipal Association states this bill will have an indeterminable fiscal impact on local expenditures in FY 2015 and each year thereafter. There is no fiscal impact on county expenditures, or state, county, local revenue.

METHODOLOGY:

    The Department of Environmental Services states this bill establishes an integrated land development permit that may be sought as an alternative to applying for multiple land development permits. The Department states it would not be able to absorb the additional responsibility to implement this program without additional funds, staffing, and statutory authority. The Department is not able to determine what it would request in additional funds for this program. The Department anticipates the fees for the integrated land development permit would equal the fees collected under the individual permits supplanted by the integrated permit, therefore not represent additional revenue to the Department. The Department states there is no direct impact on county and local revenue or expenditures.

    The New Hampshire Municipal Association states this bill will have an indeterminable fiscal impact on local expenditures. The Association states to the extent that municipalities participate, at the request of the applicant, during any or all phases of the permit program, to provide advisory input, there may be an indeterminable fiscal impact on local expenditures.