SB 0435

This bill requires the department of environmental services to consider direct and indirect impacts of project proposals on the wetlands.

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

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

1 New Paragraph; Direct Impacts. Amend RSA 482-A:2 by inserting after paragraph I-b the following new paragraph:

I-c. “Direct impacts” means the impacts to wetlands functions and values caused by those portions of a project proposal where fill will be placed in wetlands, or where wetlands will be dredged.

II-a. “Indirect impacts” means reasonably foreseeable impacts to the following characteristics and functions of wetlands on or contiguous to the site of a project proposal, caused by those portions of a project proposal located in upland areas:

(a) The ability of the wetlands and associated surface waters to meet and maintain state water quality standards, and to support and maintain a balanced, integrated, and adaptive community of organisms having a species composition, diversity, and functional organization comparable to that of similar natural habitats of the region;

(b) The ability of the wetlands to absorb flood waters and silt and to thereby avoid increased flood damage and silting of associated surface waters;

(c) The provision of habitat, food, and reproduction areas for finfish, crustacea, shellfish and wildlife of importance; and

II-b. “Local governing body” means “local governing body” as defined in RSA 672:6.

3 New Paragraph; Direct Impacts. Amend RSA 482-A:2 by inserting after paragraph VI the following new paragraph:

VI-a. “Project proposals” means proposed development project plans in their entirety, including post-construction uses and operations.

4 New Paragraph; Project Proposals. Amend RSA 482-A:3 by inserting after paragraph I the following new paragraph:

I-a. In determining whether to grant, conditionally grant, or deny applications for dredge and fill permits, the department shall consider the direct and indirect impacts of project proposals on the functions and values of wetlands.

The Department of Environmental Services (DES) states this bill would require that the Wetlands Bureau to evaluate terrestrial habitats in upland areas beyond the current scope of the wetlands permit application process. Project reviews will become generally more complex. For certain types of permits such as for minimum impact projects, the reviews will become substantially more complex. Therefore additional staff will be required to implement the state wetlands program. The Department estimates that implementation of this legislation will require 6 to 12 new positions in the Wetlands and Watershed Management Bureaus to handle the additional workload associated with wetlands permitting and water quality certification requirements. These positions could include one to two Environmentalist IV positions (LG 27), four to eight Environmentalist III positions (LG 23), and one to two Secretary II positions (LG 12). This staffing estimate cannot be further refined until it is made clear how much additional upland area will need to be evaluated under this legislation.. The Department states salaries and benefits for these positions could range from $400,000 to $900,000 dependent upon the number and type of staff required. This bill does not establish any new positions or contain an appropriation.

The Department states as the additional upland area increases in size, so does the required level of review for new applications, and the number of complaints that will be lodged with the Department. The increased complexity of review is also expected to increase the time required for permit reviews. Therefore, the statutory deadlines for wetlands permit application reviews will need to be revisited and increased. Additional time will inherently be required for application reviews due to the additional review complexity, the greater scope of public comment that will need to be considered, and the greater need for coordination with other programs within the Department and other agencies including the Natural Heritage Bureau (NHB) at the Department of Resources and Economic Development, and New Hampshire Fish and Game Department. Within the Wetlands Bureau, current staff education, training, and experience are in the area of aquatic habitats, with a number of staff licensed as certified wetlands scientists. This bill expands the requirements for upland impacts assessment for projects linked directly to the wetlands permit application. Natural Heritage Bureau, and NH Fish and Game staff are the experts in these areas that DES typically relies upon for these assessments on complex sites to identify and evaluate environmentally-sensitive areas. Either DES will be required to expand staff capability in these areas, or additional resources will need to be provided to these other agencies to enable specific, timely analysis of permit applications under the expanded reviews required by this bill. The Department states fees or general fund revenues to the program will need to be increased to hire additional staff to address impacts to these additional upland areas. The required additional resources are indeterminable at this time. This bill is also expected to increase the number of appeals of wetland permit decisions (both approvals and denials), thus increasing costs at DES and at the Department of Justice to defend permit decisions. These additional costs are also indeterminable at this time.

The Department states other government entities including state agencies, counties, and municipalities requiring wetlands permits for public works projects will incur additional costs as a result of this bill. The fiscal impact to these entities is indeterminable as it depends upon the number and complexities of public works projects in any given year. The actual additional level of effort that will be required for permitting with enactment of this bill is also indeterminable, but could represent a significant fiscal impact to these political subdivisions.