Revision: Dec. 14, 2015, midnight
\t \t\tHB 1595-FN - AS INTRODUCED
2016 SESSION
\t16-2492
\t08/04
HOUSE BILL\t1595-FN
AN ACT\trelative to the rivers management and protection program.
SPONSORS:\tRep. Spang, Straf. 6; Rep. Ford, Graf. 3; Rep. Gottling, Sull. 2; Rep. Beaulieu, Hills. 45; Sen. Reagan, Dist 17; Sen. Fuller Clark, Dist 21
COMMITTEE:\tResources, Recreation and Development
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ANALYSIS
\tThis bill:
\tI. Adds definitions for aquatic connectivity, fluvial geomorphology, and meander belt.
\tII. Expands the criteria for nomination of a river to the rivers management and protection program.
\tIII. Changes the mechanism by which members of the rivers management advisory committee are selected.
\tIV. Exempts designated river segments of third order or lower from certain setback requirements of the shoreland water quality protection act.
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Explanation:\tMatter added to current law appears in bold italics.
\t\tMatter removed from current law appears [in brackets and struckthrough.]
\t\tMatter which is either (a) all new or (b) repealed and reenacted appears in regular type.
\t16-2492
\t08/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Sixteen
AN ACT\trelative to the rivers management and protection program.
Be it Enacted by the Senate and House of Representatives in General Court convened:
\t1 New Hampshire Rivers Management and Protection Program; Intent. Amend RSA 483:2 to read as follows:
\t483:2 Program Established; Intent. There is established within the department of environmental services the New Hampshire rivers management and protection program. It is the intent of the legislature that the New Hampshire rivers management and protection program shall complement and reinforce existing state and federal water quality laws, and that in-stream flows are maintained along protected rivers, or segments thereof, in a manner that will enhance or not diminish the enjoyment of outstanding river characteristics pursuant to RSA 483:1. It is also the intent of the legislature that, through said program, the scenic beauty and recreational potential of such rivers shall be restored and maintained, that riparian interests shall be respected, and notwithstanding the provisions of RSA 483-B, that nothing in this chapter shall be interpreted to preempt any land and zoning authority granted to municipal bodies under RSA title LXIV.
\t2 New Paragraph; New Hampshire Rivers Management and Protection Program; Definitions. Amend RSA 483:4 by inserting after paragraph II the following new paragraph:
\t\tII-a. “Aquatic connectivity ” means the ability of aquatic organisms to move naturally within and among water bodies, riparian areas, and floodplains freely without barriers.
\t3 New Paragraph; New Hampshire Rivers Management and Protection Program; Definitions. Amend RSA 483:4 by inserting after paragraph IX-a the following new paragraph:
\t\tIX-b. “Fluvial geomorphology ” means a description of the physical forms and processes of a river or stream, including but not limited to bank erosion, bed scour, sediment aggradation, channel constrictions, and modifications, based on historical and field data, that may be used to evaluate the impact of riverine hazards, and improve management of associated risks.
\t4 New Hampshire Rivers Management and Protection Program; Definitions. Amend RSA 483:4, X to read as follows:
\t\tX. “Free-flowing,” as applied to any designated river or river segment, means existing or flowing [in a natural condition] without artificial impoundment, diversion, channel alterations, or other modifications [and without consideration of] excluding upstream flow management.
\t5 New Paragraph; New Hampshire Rivers Management and Protection Program; Definitions. Amend RSA 483:4 by inserting after paragraph II the following new paragraph:
\t\tXII-a. “Meander belt ” means the width on either side of a river channel which the river can occupy through time as a result of migration.
\t6 New Hampshire Rivers Management and Protection Program; Definitions. Amend RSA 483:4, XVI to read as follows:
\t\tXVI. “Protected instream flow” means a [constant minimum] stream flow [level] pattern defined in terms of flow magnitude, duration, frequency, and timing that occurs within that stream’s natural range and with its natural variability, and which is established to maintain water for present and future instream public uses.
\t7 New Hampshire Rivers Management and Protection Program; Definitions RSA 483:4, XIX is repealed and reenacted to read as follows:
\t\tXIX. “River drainage basin” means the New Hampshire portions of USGS Hydrologic Unit Codes 0104 (Androscoggin), 0108 (Connecticut), 0107 (Merrimack), 01060003 (Piscataqua), and 01060002 (Saco) river basins as delineated on a map compiled by the department.
\t8 Coordination With Federal Statutes. Amend RSA 483:5 to read as follows:
\t483:5 Coordination With Federal Statutes. For the purposes of section 10(a)(2)(A) of the Federal Power Act, those rivers or segments designated under this chapter and any state or local river corridor management plans developed pursuant to this chapter shall constitute one element of the state comprehensive plan for river conservation and development. Designated rivers or segments shall constitute protected waterways under the provisions of the Public Utilities Regulatory Policies Act, section 210(j)(2), 16 U.S.C. section 824a-3(j)(2).
\t9 Nominations; Criteria. Amend RSA 483:6, I to read as follows:
\t\tI. Any New Hampshire organization or resident may nominate a river or any segment or segments of such river for protection by submitting to the commissioner a description of the river or segment or segments of such river and its values and characteristics. The completed nomination shall be submitted to the rivers coordinator on or before June 1 in order for it to be considered in the next legislative session. This nomination shall include, but not be limited to, an assessment of fisheries; geologic and hydrologic features; vegetation; wildlife; historical and archaeological features; open space and recreation features and potential; water quality and quantity; dams, hydropower generation, buildings, and other manmade structures; riparian interests and public water supply, including flowage rights known by the nominating individual or group, and other pertinent instream and riverbank and tributary drainage area information. The nominating party shall hold at least one public meeting on the information prior to final submittal to the commissioner. The department shall encourage the nominating party to include tributary drainage area information in the nomination. Nominations shall include identification of the stream order of each river or river segment proposed for designation and the provisions of RSA 483-B that apply to each segment. The nominating party shall advertise the meeting publicly in cooperation with the rivers coordinator and shall give written notice to [riparian landowners and] the governing body of any municipality where segments of the river are located. The rivers coordinator shall provide assistance to the nominating party in the presentation of the nomination at the public meeting.
\t10 New Hampshire Rivers Management and Protection Program RSA 483:6, IV(a) is repealed and reenacted to read as follows:
\t\t\t(a) Whether the river, or segment or segments of such river, contain or represent either a significant statewide, regional, or local example of one or more of the following:
\t\t\t\t(1) Geologic resources.
\t\t\t\t(2) Wildlife resources.
\t\t\t\t(3) Vegetation and natural communities.
\t\t\t\t(4) Fish resources.
\t\t\t\t(5) Water quality.
\t\t\t\t(6) Water quantity.
\t\t\t\t(7) Riparian interests.
\t\t\t\t(8) Existing and potential withdrawals and discharges.
\t\t\t\t(9) Existing and potential hydroelectric resources.
\t\t\t\t(10) Hydrologic resources, including natural flow characteristics.
\t\t\t\t(11) Existing and potential recreational resources.
\t\t\t\t(12) Public access.
\t\t\t\t(13) Scenic characteristics.
\t\t\t\t(14) Cultural, historical, and archaeological resources.
\t\t\t\t(15) Open space.
\t\t\t\t(16) Community resources.
\t\t\t\t(17) Current land use and land use controls.
\t\t\t\t(18) Scientific resources.
\t11 Rivers Classification Criteria. Amend RSA 483:7-a, I(a)(1) to read as follows:
\t\t\t\t(1) The minimum length of any segment shall be [5] 3 miles.
\t12 New Hampshire Rivers Management and Protection; River Classification Criteria; Management. Amend RSA 483:7-a, I(a)(3) to read as follows:
\t\t\t\t(3) [The minimum distance from the river shoreline to a] Any paved road open to the public for motor vehicle use shall be [250 feet, except where] screened by the river bank, a vegetative or other natural barrier [exists which] to effectively [screens] conceal the sight and sound of motor vehicles for a majority of the length of the river or segment.
\t13 New Hampshire Rivers Management and Protection; River Classification Criteria; Management. Amend RSA 483:7-a, I(d)(1) to read as follows:
\t\t\t\t(1) The minimum length of any segment shall be one half mile.
\t14 Rivers Management Advisory Committee. Amend RSA 483:8, I to read as follows:
\t\tI. The advisory committee shall include:
\t\t\t(a) A representative of public water suppliers who shall be an officer or employee of any municipal or privately owned water works in the state nominated by the New Hampshire Water Works Association.
\t\t\t(b) A municipal officer nominated by the New Hampshire Municipal Association.
\t\t\t(c) A member of the fish and game commission.
\t\t\t(d) A representative [of] nominated by the Business and Industry Association [chosen from a list of 3 nominees].
\t\t\t(e) A representative of the hydropower industry nominated by the Granite State Hydropower Association in consultation with the New Hampshire hydropower industry [chosen from a list of 3 nominees].
\t\t\t(f) A conservation commission member [chosen from a list of 3 nominees submitted] nominated by the New Hampshire Association of Conservation Commissions.
\t\t\t(g) A representative of the conservation community [chosen from a list of 3 nominees submitted] nominated by the Society for Protection of New Hampshire Forests, the Audubon Society of New Hampshire, and the New Hampshire Wildlife Federation.
\t\t\t(h) A representative of recreational interests [chosen from a list of 3 nominees submitted] nominated by the New Hampshire Rivers [Campaign] Council and the Appalachian Mountain Club.
\t\t\t(i) A representative of historic/archaeological interests [chosen from a list of 3 nominees submitted] nominated by the New Hampshire Historical Society.
\t\t\t(j) A representative of the agricultural community [chosen from a list of 3 nominees submitted] nominated by the New Hampshire Farm Bureau Federation, the Northeast Organic Farming Association, and the New Hampshire Association of Conservation Districts.
\t\t\t(k) A representative of local river management advisory committees [from a list of 3 nominees submitted] nominated by the commissioner from a list of members submitted by the local river management advisory committees.
\t15 Rivers Management Advisory Committee; Gender Neutral Language. Amend RSA 483:8, V-VI to read as follows:
\t\tV. The committee shall elect a [chairman] chairperson and vice [chairman] chairperson. Meetings shall be at the call of the [chairman] chairperson, or at the request of 5 or more committee members. The rivers coordinator under RSA 483:3 shall serve as secretary and staff to the committee.
\t\tVI. The advisory committee shall report biennially and advise the commissioner, rivers coordinator, state agencies, municipalities, and the general court in implementing the purposes of this chapter.
.\t16 New Paragraph; Rivers Management Advisory Committee. Amend RSA 483:8 by inserting after paragraph VI the following new paragraph:
\t\tVI-a. The advisory committee, at its discretion, may provide testimony and advice on legislation and rules relevant to the management and protection of New Hampshire’s rivers.
\t17 Local River Management Advisory Committees. Amend RSA 483:8-a, I-III-a to read as follows:
\t\tI. The commissioner shall appoint a local river management advisory committee for each designated river or segment. Committee members shall be chosen from lists of nominees submitted by the local governing bodies of the municipalities through which the designated river or segment flows. [The commissioner shall appoint at least one person from each municipality to the local river management advisory committee.] All members of such committees shall be New Hampshire residents.
\t\tII. Each committee shall be composed of at least [7] 3 members who represent a broad range of interests in the vicinity of the designated river or segment. These interests shall include, but not be limited to, local government, business, conservation interests, recreation, agriculture, and riparian landowners. If an interest is not represented by the local governing bodies’ nominations, the commissioner may appoint a member from the vicinity of the designated river or segment, to the local river management advisory committee who will represent that interest. County commissioners shall be permitted to nominate members to the local river management advisory committee in unincorporated towns or unorganized places. Upon the request of the committee, local governing bodies or county commissioners within tributary drainage areas may submit nominees for appointment. Each member shall serve a term of 3 years, except when the committee is first established. When the committee is first established the commissioner shall appoint members to one, 2, or 3 year terms to create staggered terms.
\t\tIII. The duties of such committees shall be:
\t\t\t(a) To advise the commissioner, the advisory committee, the municipalities through which the designated river or segment flows, and municipalities within tributary drainage areas on matters pertaining to the management of the river or segment [and], tributary drainage areas, and on disposal of state-owned lands. Municipal officials, boards, and agencies shall inform such committees of actions which they are considering in managing and regulating activities within designated river corridors.
\t\t\t(b) To consider and comment on any federal, state, or local governmental plans to approve, license, fund, or construct facilities or any applications for permits, certificates, or licenses, that would alter the resource values and characteristics for which the river or segment is designated.
\t\t\t(c) To develop or assist in the development and adoption of local river corridor management plans under RSA 483:10. The local planning board, or, in the absence of a planning board, the local governing body, may adopt such plans pursuant to RSA 675:6 as an adjunct to the local master plan adopted under RSA 674:4. No such plan shall have any regulatory effect unless implemented through properly adopted ordinances.
\t\t\t(d) To report biennially to the advisory committee and the commissioner, and annually to municipalities on the status of compliance with federal and state laws and regulations, local ordinances, and plans relevant to the designated river or segment, its corridor, [and] tributary drainage areas, and the activities of the local river management advisory committee including, but not limited to, committee volunteer hours, permit applications reviewed, corridor management plans and their implementation, and education and outreach efforts.
\t\tIII-a. Local river management advisory committees may apply for and accept, from any source, gifts, grants, and other donations of money or services that directly assist the committee in meeting its duties, programs, and projects. The committees may, without further authorization, expend any funds so received to carry out their duties under this section.
\t18 New Paragraph; New Hampshire Rivers Management and Protection Program; Local River Management Advisory Committees. Amend RSA 483:8-a by inserting after paragraph III-a the following new paragraph:
\t\tIII-b. Local river management advisory committees may, with the approval and consensus of the local governing bodies, merge with other local river management advisory committees for a designated river or segment or re-establish individual committees from previously merged committees.
\t19 Natural Rivers Protection. Amend RSA 483:9, IV to read as follows:
\t\tIV. A protected instream flow [level] shall be established by the commissioner for each designated natural river or segment and any upstream impoundment or diversion facility which may affect the free-flowing condition or natural character of the designated river or segment pursuant to RSA 483:9-c.
\t20 Natural Rivers Protection. Amend RSA 483:9, VI(c) to read as follows:
\t\t\t(c) Any land application within the river corridor of septage, sludge, or solid waste, as defined in RSA 149-M:4, XXII, shall be set back a minimum of 250 feet from the normal high water mark and shall be immediately incorporated into the soil. The provisions of this subparagraph shall not apply to manure, lime, or wood ash when used for agricultural purposes and that follow established state or federal best management practices for the protection of water quality.
\t21 Rural River Protection. Amend RSA 483:9-a, II(c) to read as follows:
\t\t\t(c) The height of the impoundment is constant and is not raised above the maximum historic level of impoundment at that site[.] ; and
\t\t\t(d) The proposed facility provides adequate fish passage as determined by the fish and game department.
\t22 Rural River Protection. Amend RSA 483:9-a, V to read as follows:
\t\tV. A protected instream flow [level] shall be established by the commissioner for each designated rural river or segment and any upstream impoundment or diversion facility which may affect the natural flow characteristics or natural character of the designated river or segment pursuant to RSA 483:9-c.
\t23 Rural River Protection. Amend RSA 483:9-a, VII(d) to read as follows:
\t\t\t(d) Any land application within the river corridor of septage, sludge, or solid waste, as defined in RSA 149-M:4, XXII, shall be set back a minimum of 250 feet from the normal high water mark and shall be immediately incorporated into the soil. The provisions of this subparagraph shall not apply to manure, lime, or wood ash when used for agricultural purposes and that follow established state or federal best management practices for the protection of water quality;
\t24 Rural-Community Rivers Protection. Amend RSA 483:9-aa, II(c) to read as follows:
\t\t\t(c) The height of the impoundment is constant and is not raised above the maximum historic level of impoundment at that site[.] and
\t\t\t(d) The proposed facility provides adequate fish passage as determined by the fish and game department.
\t25 Rural-Community Rivers Protection. Amend RSA 483:9-aa, V to read as follows:
\t\tV. A protected instream flow [level] shall be established by the commissioner for each designated rural-community river or segment and any upstream impoundment or diversion facility which may affect the natural flow characteristics of such river or segment pursuant to RSA 483:9-c.
\t26 Rural-Community Rivers Protection. Amend RSA 483:9-aa, VII(b) to read as follows:
\t\t\t(b) Any land application within the river corridor of septage, sludge, or solid waste, as defined in RSA 149-M:4, XXII, shall be set back a minimum of 250 feet from the normal high water mark and shall be immediately incorporated into the soil. The provisions of this subparagraph shall not apply to manure, lime, or wood ash when used for agricultural purposes and that follow established state or federal best management practices for the protection of water quality;
\t27 New Subparagraph; Community Rivers Protection. Amend RSA 483:9-b, II by inserting after subparagraph (c) the following new subparagraph:
\t\t\t(d) The proposed facility provides adequate fish passage as determined by the fish and game department.
\t28 Community Rivers Protection. Amend RSA 483:9-b, V to read as follows:
\t\tV. A protected instream flow [level] shall be established by the commissioner for each designated community river or segment and any upstream impoundment or diversion facility which may affect the natural flow characteristics of such river or segment pursuant to RSA 483-A:9-c.
\t29 Community Rivers Protection. Amend RSA 483:9-b, VII(b) to read as follows:
\t\t\t(b) Any land application within the river corridor of septage, sludge, or solid waste, as defined in RSA 149-M:4, XXII, shall be set back a minimum of 250 feet from the normal high water mark and shall be immediately incorporated into the soil. The provisions of this subparagraph shall not apply to manure, lime, or wood ash when used for agricultural purposes and that follow established state or federal best management practices for the protection of water quality;
\t30 Establishment of Protected Instream Flows. Amend RSA 483:9-c, III-IV to read as follows:
\t\tIII. The procedure adopted under this section shall include an assessment of the effect of a protected instream flow upon existing hydroelectric power generation, water supply, flood control, and other riparian users. [For any portion of a designated river or segment where a protected instream flow would affect the operation of an existing hydroelectric power facility within or upstream from the designated river or segment, the commissioner shall request the assistance of the public utilities commission in order to assess the effect of a protected instream flow upon such facility.]
\t\tIV. The protected instream [flow levels] flows established under this section shall be maintained at all times, except when inflow is less than the protected instream flow level as a result of natural causes or when the commissioner determines that a public water supply emergency exists which affects public health and safety.
\t31 River Corridor Management Plans. Amend RSA 483:10 to read as follows:
\t483:10 [Rivers] River Corridor Management Plans.
\t\tI. [The rivers coordinator, with the cooperation and assistance of the office of energy and planning, shall develop detailed guidelines for river corridor management plans.] The rivers coordinator shall provide technical assistance to local river management advisory committees, regional planning commissions, municipalities, [and local river management advisory committees] and shall encourage the development and implementation of local river corridor management plans pursuant to RSA 483:8-a, III(c). In developing these plans, the department shall coordinate with the department of resources and economic development, the department of fish and game, the office of energy and planning, the department of agriculture, markets and food, the department of transportation, the department of safety, and the division of historical resources.
\t\tII. River corridor management plans developed pursuant to paragraph I shall include, but not be limited to, the following:
\t\t\t(a) Permitted recreational uses and activities.
\t\t\t(b) Permitted non-recreational uses and activities.
\t\t\t(c) Existing land uses.
\t\t\t(cc) Aquatic connectivity.
\t\t\t(d) Protection of flood plains, meander belts, wetlands, wildlife and fish habitat, and other significant open space and natural areas.
\t\t\t(e) Dams, bridges, and other water structures.
\t\t\t(f) Access by foot and vehicles.
\t\t\t(g) Setbacks and other location requirements.
\t\t\t(h) Dredging, filling, mining, and earth moving.
\t\t\t(i) Prohibited uses.
\t\t\t(j) State-owned lands within the corridor and tributary drainage areas thereof. The plan shall include recommendations on the administration and management of state-owned lands within the corridor.
\t\t\t(k) Fluvial geomorphology and risk reduction.
\t\tIII. River corridor management plans developed according to this section may include tributary drainage areas as determined by the local river management advisory committee.
\t\tIV. State agencies shall collaborate with and assist the rivers coordinator and the local river management advisory committee [in] with the [development and] implementation of river corridor management plans.
\t32 Withholding of Section 401 Certification. Amend RSA 483:10-b to read as follows:
\t483:10-b Withholding of Section 401 Certification. The general court finds that the development of any dam or channel alteration activities within a natural river or segment or the development of any new dam within a rural, rural-community, or community river or segment, except as provided in RSA 483:9-a, II, RSA 483:9-aa, II and RSA 483:9-b, II, will alter the physical and chemical characteristics of that river and will constitute violation of the water quality standards established under RSA 485-A:8. The commissioner shall deny certification of any federally licensed or permitted activity on such designated rivers or segments under section 401 of the Federal Water Pollution Control Act, P.L. 92-500, as amended.
\t33 State Action; Notification of Rivers Coordinator; Petition for Review. Amend RSA 483:12-a, I-I-a to read as follows:
\t\tI. Any state agency considering any action affecting any river or segment designated under this chapter shall notify the rivers coordinator and the local river management advisory committee prior to taking any such action. Such agency shall forward to the rivers coordinator and the local river management advisory committee for review and comment copies of all notices of public hearings, or, where a public hearing is not required, a copy of the application for issuance of a permit, certificate, or license within the designated river or corridor including, but not limited to, [under] RSA 485-C, RSA 485-A, RSA 483-B, RSA 12-E, RSA 270:12, RSA 482, RSA 482-A, RSA 149-M, RSA 430, or RSA 147-A. If an agency is notified by the rivers coordinator that a proposed activity would violate a protection measure under RSA 483:9, 483:9-a, 483:9-aa, or 483:9-b, such agency shall deny the application.
\t\tI-a. State agencies shall develop, in conjunction with the [The] rivers coordinator [shall develop, in conjunction with affected state agencies] and the local river management advisory committees, the procedure by which the state shall notify the appropriate local river management advisory committee when state action is being considered which affects a designated river.
\t34 Rivers Designated for Protection. Amend the introductory paragraph of RSA 483:15, I to read as follows:
\t\tI. Lamprey River and [its] the watershed tributaries [including]: North Branch, Pawtuckaway, North, Little, and [Picassic] Piscassic Rivers.
\t35 Rivers Designated for Protection. Amend RSA 483:15, I(b) to read as follows:
\t\t\t(b) All 1st, 2nd, and 3rd order portions of the Lamprey River and its tributary rivers shall be exempt from the provisions of the [comprehensive] shoreland water quality protection act, RSA 483-B.
\t36 Shoreland Protection Act; 3rd Order Rivers Exempt. Amend the introductory paragraph of RSA 483-B:9, V to read as follows:
\t\tV. The following minimum standards shall apply to areas and activities within the protected shoreland with the exception of activities beyond the waterfront buffer in rivers or river segments of 3rd order or less in size designated after December 31, 2015 and forest management that is not associated with shoreland development or land conversion, and is conducted in compliance with RSA 227-J:9; forestry conducted by or under the direction of a water supplier for the purpose of managing a water supply watershed; and agriculture conducted in accordance with best management practices as required by RSA 483-B:3, III:
\t37 Repeal. The following are repealed:
\t\tI. RSA 483:10-a, relative to long-range river management plans.
\t\tII. RSA 483:14, II, relative to state owned property included in a long-range river management plan.
\t38 Effective Date. This act shall take effect 60 days after its passage.
\t\t\t\t\t\t\t\t\t\t\t16-2492
\t\t\t\t\t\t\t\t\t\t\t11/24/15
HB 1595-FN- FISCAL NOTE
AN ACT\trelative to the rivers management and protection program.
FISCAL IMPACT:
The Department of Environmental Services states this bill, as introduced, may decrease local expenditures by an indeterminable amount in FY 2017 and each year thereafter. There will be no impact on state, county and local revenue or state and county expenditures.
METHODOLOGY:
The Department states the changes in this bill are, technical in nature, fiscally neutral, do not require additional resources, or require the Department to take on any major new responsibilities. The Department indicates the bill clarifies the role and activities of Local Advisory Committees which are made up of volunteers chosen by their respective communities. A proposed change is to eliminate one aspect of notification to individual abutters on a river being considered for nomination to the rivers management and protection program. The Department states this change may reduce expenditures by the nominating committee and, while it is rare that local municipalities fund a nominating committee, it is possible that the change would reduce local costs. The Department states there would be no impact on county revenue or expenditures since counties are not involved in the program.