Revision: March 12, 2018, 9:16 a.m.
HB 1104-FN - AS AMENDED BY THE HOUSE
8Feb2018... 0399h
2018 SESSION
18-2645
05/10
HOUSE BILL 1104-FN
SPONSORS: Rep. Hinch, Hills. 21; Rep. Leishman, Hills. 24; Rep. McConkey, Carr. 3; Rep. Avellani, Carr. 5; Sen. Bradley, Dist 3; Sen. Daniels, Dist 11; Sen. Giuda, Dist 2
COMMITTEE: Resources, Recreation and Development
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ANALYSIS
This bill reduces certain timelines related to dredge and fill permit applications; reduces certain time limits for agency actions on applications under the administrative procedure act; and requires the secretary of state to allow online filing of documents under the New Hampshire business corporation 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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
8Feb2018... 0399h 18-2645
05/10
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Eighteen
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Wetlands and Shorelands Review Fund; Reference Added. Amend RSA 482-A:3, III to read as follows:
III. The filing fees collected pursuant to paragraphs I, V(c), XI(h), [and] XII(c), and X are continually appropriated to and shall be expended by the department for paying per diem and expenses of the public members of the council, hiring additional staff, reviewing applications and activities relative to the wetlands of the state and protected shorelands under RSA 483-B, conducting field investigations, and holding public hearings. Such fees shall be held by the treasurer in a nonlapsing fund identified as the wetlands and shorelands review fund.
2 Reduction of Dredge and Fill Permit Timelines. Amend RSA 482-A:3, XIV to read as follows:
XIV.(a) In processing an application for permits under this chapter, except for a permit by notification, the department shall:
(1) Within [14] 10 days of receipt by the department, issue a notice of administrative completeness or send notice to the applicant, at the address provided on the application, identifying any additional information required to make the application administratively complete and providing the applicant with the name and telephone number of the department employee to whom all correspondence shall be directed by the designated department employee regarding incompleteness of the application. Each receipt of additional information in response to any notice shall re-commence the [14-day] 10-day period until the department issues a notice of administrative completeness. Any notice of incompleteness sent under this subparagraph shall specify that the applicant or authorized agent shall submit such information as soon as practicable and shall notify the applicant or authorized agent that if the requested information is not received within 60 days of the notice, the department shall deny the application.
(2) Within [75] 50 days of the issuance of a notice of administrative completeness for projects where the applicant proposes under one acre of jurisdictional impact and [105] 75 days for all other projects, request any additional information that the department is permitted by law to require to complete its evaluation of the application, together with any written technical comments the department deems necessary. Such request and technical comments may be sent by electronic means if the applicant or authorized agent has indicated an agreement to accept communications by electronic means, either by so indicating on the application or by a signed statement from the applicant or authorized agent that communicating by electronic means is acceptable. Any request for additional information under this subparagraph shall specify that the applicant submit such information as soon as practicable and shall notify the applicant that if the requested information is not received within 60 days of the request, the department shall deny the application. The department [may] shall grant an extension of this 60-day time period upon request of the applicant.
(3) Where the department requests additional information pursuant to subparagraph (a)(2), within 30 days of the department's receipt of a complete response to the department's information request:
(A) Approve the application, in whole or in part, and issue a permit; or
(B) Deny the application and issue written findings in support of the denial; or
(C) Schedule a public hearing within 30 days in accordance with this chapter and rules adopted by the commissioner; or
(D) Extend the time for rendering a decision on the application for good cause and with the written agreement of the applicant; or
(4) Where no request for additional information is made pursuant to subparagraph (a)(2), within [75] 50 days from the issuance of the notice of administrative completeness for proposed projects under one acre of jurisdictional impact, or [105] 75 days for all others:
(A) Approve the application, in whole or in part, and issue a permit; or
(B) Deny the application and issue written findings in support of the denial; or
(C) Schedule a public hearing within 30 days in accordance with this chapter and rules adopted by the commissioner; or
(D) Extend the time for rendering a decision on the application for good cause and with the written agreement of the applicant.
(5) Where the department has held a public hearing on an application filed under this chapter, within [60] 45 days following the closure of the hearing record, approve the application in whole or in part, and issue a permit or deny the application and issue written findings in support of the denial.
(b)(1) The time limits prescribed by this paragraph shall supersede any time limits provided in any other provision of law. If the department fails to act within the applicable time frame established in subparagraphs (a)(3), (a)(4), and (a)(5), 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.
(2) Within 14 days of the date of receipt of a written request from the applicant to issue the permit, the department shall:
(A) Approve the application, in whole or in part, and issue a permit; or
(B) Deny the application and issue written findings in support of the denial.
(3) 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, RSA 485-A relating to water quality, and federal requirements.
(4) 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)(3), 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 RSA 485-A relating to water quality, and federal requirements.
(c) If extraordinary circumstances prevent the department from conducting its normal function, time frames prescribed by this paragraph shall be suspended until such condition has ended, as determined by the commissioner.
(d) The time limits prescribed by this paragraph shall not apply to an application filed after the applicant has already undertaken some or all of the work covered by the application, or where the applicant has been adjudicated after final appeal, or otherwise does not contest, the department's designation as a chronic non-complier in accordance with rules adopted pursuant to this chapter.
(e) Any request for a significant amendment to a pending application or an existing permit which changes the footprint of the permitted fill or dredge area shall be deemed a new application subject to the provisions of RSA 482-A:3, I and the time limits prescribed by this paragraph. "Significant amendment'' means an amendment which changes the proposed or previously approved acreage of the permitted fill or dredge area by 20 percent or more, relocates the proposed footprint of the permitted fill or dredge area, includes a prime wetland or surface waters of the state, includes a wetland of a different classification as classified by the department, or includes non-wetland areas requiring permits for filling and dredging. This meaning of "significant amendment'' shall not apply to an application amendment that is in response to a request from the department.
(f) The department may extend the time for rendering a decision under subparagraphs (a)(3)(D) and (a)(4)(D), without the applicant's agreement, on an application from an applicant who, [previously] within the 5 years preceding the application, has been determined, after the exhaustion of available appellate remedies, to have failed to comply with this chapter or any rule adopted or permit or approval issued under this chapter, or to have misrepresented any material fact made in connection with any activity regulated or prohibited by this chapter, pursuant to an action initiated under RSA 482-A:13, RSA 482-A:14, or RSA 482-A:14-b. The length of such an extension shall be no longer than reasonably necessary to complete the review of the application, but shall not exceed [30] 20 days unless the applicant agrees to a longer extension. The department shall notify the applicant of the length of the extension.
(g) The department may suspend review of an application for a proposed project on a property with respect to which the department has commenced an enforcement action against the applicant for any violation of this chapter, RSA 483-B, RSA 485-A:17, or RSA 485-A:29-44, or of any rule adopted or permit or approval issued pursuant to this chapter, RSA 483-B, RSA 485-A:17, or RSA 485-A:29-44. Any such suspension shall expire upon conclusion of the enforcement action and completion of any remedial actions the department may require to address the violation; provided, however, that the department may resume its review of the application sooner if doing so will facilitate resolution of the violation. The department shall resume its review of the application at the point the review was suspended, except that the department may extend any of the time limits under this paragraph and its rules up to a total of 30 days for all such extensions. For purposes of this subparagraph, "enforcement action'' means an action under RSA 482-A:13, RSA 482-A:14, RSA 482-A:14-b, RSA 483-B:18, RSA 485-A:22, RSA 485-A:42, or RSA 485-A:43.
3 New Paragraph; Excavating and Dredging Permit; Certified Application Preparer Program for Certain Wetlands Applications. Amend RSA 482-A:3 by inserting after paragraph XIX the following new paragraph:
XX.(a) The department shall develop a voluntary certified application preparer program for submission of applications for all qualifying minimum impact projects. The commissioner shall adopt rules to establish the qualifications to become a certified application preparer and to identify qualifying minimum impact projects. The qualifications established shall include that the individual is a permitted septic system designer or is licensed or certified by the office of professional licensure and certification as a certified wetland scientist, certified soil scientist, professional engineer, licensed land surveyor, or any other professional designated by the department, and shall include training and continuing education requirements. Qualifying minimum impact projects shall include, but not necessarily be limited to, all projects which the department has designated as minimum impact projects in its wetlands rules.
(b) Applications for qualifying minimum impact projects submitted by a certified application preparer shall not require technical review by the department and the department shall issue a permit within 10 days of receipt of a complete application.
(c) The department may revoke a certificate for good cause after notification to the certificate holder and opportunity for an adjudicative proceeding under RSA 541-A:31 and rules adopted by the department.
(d) The certification shall be valid for one year from the date of issuance and may be renewed every year. The initial fee for certification shall be $200 and the fee for renewal shall be $50. The department shall not issue a certification or a renewal certification if the required fee is not paid. All fees shall be deposited into the wetlands and shoreland review fund established in RSA 482-A:3, III.
4 Administrative Provisions; Extensions for Conservation Commission Action on Wetlands Applications. Amend RSA 482-A:11, III(a) to read as follows:
III.(a) Upon written notification to the department by a municipal conservation commission that it intends to investigate any notice received by it pursuant to RSA 482-A:3, the department shall not make its decision on the application that is the subject of the notice until it has received and acknowledged receipt of a written report from such commission, or until 40 days from the date of filing with the municipal clerk of such notice, whichever occurs earlier[, subject to an extension as permitted by the department]. In connection with any local investigation, a conservation commission may hold a public informational meeting or a public hearing, the record of which shall be made a part of the record of the department. [Where the department grants an extension, the time limits prescribed by RSA 482-A:3, XIV(b) shall be suspended until a date agreed to by the applicant and the department.] If a conservation commission makes a recommendation to the department in its report, the department shall specifically consider such recommendation and shall make written findings with respect to each issue raised in such report which is contrary to the decision of the department. If notification by a local conservation commission pursuant to this paragraph is not received by the department within 14 days following the date the notice is filed with the municipal clerk, the department shall not suspend its normal action, but shall proceed as if no notification has been made.
5 Reduction of Dredge and File Retroactive Enforcement Period. Amend RSA 482-A:14-c to read as follows:
482-A:14-c Limitation on Enforcement Action. No person who acquires property, by any means, more than [5] 2 years after an activity constituting a violation of this chapter has been completed, shall be subject to an enforcement action under this chapter for such violation, provided such person allows restoration of impacted areas, unless the person knew of the existence of the violation at the time that the person acquired the property. Nothing in this section shall limit any enforcement action for violation of this chapter, including injunctive relief requiring restoration of impacted areas, against the person who committed the violation. Nothing in this section shall limit any enforcement action with respect to any violation of this chapter, including injunctive relief requiring restoration of impacted areas, for which written notice of the violation has been provided to the owner by the department prior to January 1, 2013. In addition to any common law remedy, any person who suffers damages as a result of a violation of this chapter committed by another may seek compensation from the person who committed the violation, including diminution in property value and reasonable attorney's fees.
6 Reduction of Time Limits for Agency Action on Application, Petitions, and Requests. Amend RSA 541-A:29 to read as follows:
541-A:29 Agency Action on Applications, Petitions and Requests. In processing an application, petition, or request, in any matter other than rulemaking or a declaratory ruling, in which a response is specifically addressed to the applicant, petitioner, or requester, the agency shall:
I. Within [60] 30 days of receipt, examine the application, petition, or request, notify the applicant of any apparent errors or omissions, request any additional information that the agency is permitted by law to require, and notify the applicant of the name, official title, address, and telephone number of an agency official or employee who may be contacted regarding the application.
II. Within a reasonable time, not to exceed [120] 60 days, after receipt of the application, petition or request, or of the response to a timely request made by the agency pursuant to paragraph I, the agency shall:
(a) Approve or deny the application, in whole or in part, on the basis of nonadjudicative processes, if disposition of the application by the use of these processes is not precluded by any provision of law; or
(b) Commence an adjudicative proceeding in accordance with this chapter.
III. If the time limits prescribed by this section conflict with specific time limits provided for by other provisions of law, the specific time limits provided for by such other provisions shall control.
IV. An agency may extend the time periods for review provided for in this section or in any other provision of law upon written agreement of the applicant.
7 New Section; New Hampshire Business Corporation Act; Online Filing. Amend RSA 293-A by inserting after section 1.21 the following new section:
293-A:1.21-a Online Filing. The secretary of state shall provide for and allow the online filing of all forms, certificates, and other documents required under this subdivision.
8 Effective Date. This act shall take effect January 1, 2019.
18-2645
Amended 3/12/18
HB 1104-FN- FISCAL NOTE
AS AMENDED BY THE HOUSE (AMENDMENT #2018-0399h)
FISCAL IMPACT: [ X ] State [ ] County [ ] Local [ ] None
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| Estimated Increase / (Decrease) | |||
STATE: | FY 2019 | FY 2020 | FY 2021 | FY 2022 |
Appropriation | $0 | $0 | $0 | $0 |
Revenue | Indeterminable | Indeterminable | Indeterminable | Indeterminable |
Expenditures | Indeterminable Increase | Indeterminable Increase | Indeterminable Increase | Indeterminable Increase |
Funding Source: | [ X ] General [ ] Education [ ] Highway [ X ] Other - Various Government Funds | |||
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METHODOLOGY:
The Department of Environmental Services indicates section 2 of the bill would cut the Department’s time to review wetlands permits from 75 days to 50 days. The Department assumes cutting the review time by one third would require a one third increase in application review staff from the current 7 staff to 9. The bill does not provide revenue to support the additional staff which would be Environmentalist III positions at labor grade 23. The Department estimates the cost for two additional wetlands application review staff would range from $168,000 in FY 2019 to $180,000 in FY 2022.
The Department of State, Corporate Division indicates over the past biennium many of the business filings have been converted from mailed or in-person filings to electronic submissions and many business filings can now be completed online. The Department identified the following business filings under RSA 293-A that cannot currently be done online:
The Department expects reinstatements, conversions and business lists will be available online within the year. Certified copies are not expected to be online because not all are available. The remaining items were not included in their software development because they are either complex or low volume filings. The Department estimates the cost to upgrade the filing system to accept and process each additional business filings online would be approximately $30,000. Therefore the Department states the cost to allow for online filing for all forms, certificates and documents as required in the bill is indeterminable, but approximately $300,000.
The Department Revenue Administration indicates this bill would increase state expenditures by an indeterminable amount and have an indeterminable impact on state revenue. The Commissioner has the duty to hear appeals of numerous issues including: disputed taxes, penalties and interest for taxes, decertification or rejection of assessors certified by the Department pursuant to RSA 21-J, f, denial, suspension, or revocation of Meals & Rooms or Tobacco licenses, municipal property tax rates set by the Commissioner, seizure and forfeiture of contraband tobacco products and bond hearings. The Department of Revenue Administration currently has 60 days to provide an initial response to an applicant or petitioner. Such contact would include notification of errors or omissions, a request for additional information, and contact information for the Department employee handling the application or petition. This bill would shorten the time limit for the initial response to 30 days, which may be extended based on a written agreement with the applicant or petitioner. Currently, when an application or petition is submitted to the Department, the Administrative Procedures Act allows 120 days for the Department to approve or deny the application or petition, or commence an adjudicative proceeding. The bill would shorten the time limit to 60 days, which may be extended based on a written agreement with the applicant or petitioner. The Department believes this bill would increase expenditures by an indeterminable amount. The Department states the current 120 day period between an appeal and adjudicative proceedings is an important period for fact finding and negotiation in which the vast majority of appeals are settled. The Department assumes shortening this period would result in fewer cases being settled and more cases having a full hearing. In order to accommodate additional hearings the Department would need additional staff in the Hearings Bureau. The Department does not have information to estimate the potential fiscal impact on expenditures associated with additional staff or the impact on revenues due more cases having a full hearing.
The Department of Health and Human Services states section 3 of the bill could impact the Department by reducing the time frames for acting on applications. The bill would require the Department to notify applicants within 30 days to inform them of any missing information or to request additional information. Under current law, the Department has 60 days. The 60 and 30 day time limits could be extended upon written agreement of the applicant. In addition, the bill would require the Department to approve or deny an application within 60 days of the receipt of complete information unless extended through an agreement with the applicant. In current law, the Department has 120 days. The Department states, based on its current business model, it does not anticipate the proposed time line reductions will have a fiscal impact.
The Office of Professional Licensure and Certification indicates reducing the time lines to respond to applications would increase state expenditures by an indeterminable amount due to the need for additional staff.
The Department of Administrative Services indicates changes to the Administrative Procedures Act would impact all state agencies and departments. The Department has no information on how the bill might impact the operations of the State’s various boards, commission, agencies and departments. Most agencies have their own administrative rules and the changes to the time frames in RSA 541-A would likely require some or most agencies to change their rules. The Department has no information on which to determine the impact on state expenditures or revenues.
The Liquor Commission states, unless the applicant agrees in writing to extend the time limits, the amendment to RSA 541-A:29 would reduce the time the Commission has to review license applications from 60 days to 30 days and reduce the time the Commission has to issue or deny the license application from 120 days to 60 days, and may increase expenditures by an indeterminable amount. The Commission states it has rarely taken applications to the maximum limits in current law, but indicates the bill could lead to a situation where the Commission is unable to responsibly review applications. The Commission issued over 5,100 licenses in FY 2017 and all is subject to the renewal time limits imposed in RSA 541-A:29. In addition, 743 new licenses were issued in FY 2017. The Commission assumes shorting the time limits may require additional personnel to comply with the proposed shorter time limits.
The Office of Legislative Services Administrative Rules indicates the number of agencies impacted by the proposed change to RSA 541-A:29 is unknown, but could be large as there are approximately 120 rulemaking agencies. Many agencies use the review deadline in RSA 541-A:29 to guide their application processes when their own statutes do not address time limits. The Office indicates the proposed amendment to RSA 541-A:29 would increase the number of rulemaking proceedings by an indeterminable amount. It is unknown if an additional employee, equipment or supplies would be needed due to the increase in proceedings.
AGENCIES CONTACTED:
Departments of Environmental Services, State, Revenue Administration, Health and Human Services, and Administrative Services; Office of Professional Licensure and Certification; New Hampshire Liquor Commission; and Office of Legislative Services Administrative Rules