WATER MANAGEMENT AND PROTECTION
SHORELAND WATER QUALITY PROTECTION ACT
See Emergency Order #29 (NH LEGIS E.O. 2020-29-Emerg. (2020, 2029:1.)), issued pursuant to Executive Order 2020-04 (NH LEGIS E.O. 2020-04 (2020, 1004:1.)) as extended by Executive Orders 2020-05 (NH LEGIS E.O. 2020-05 (2020, 1005:1.)); 2020-08 (NH LEGIS E.O. 2020-08 (2020, 1008:1.)); 2020-09 (NH LEGIS E.O. 2020-09 (2020, 1009:1.)); 2020-010 (NH LEGIS E.O. 2020-010 (2020, 1010:1.)); 2020-014 (NH LEGIS E.O. 2020-014 (2020, 1014:1.)); 2020-015 (NH LEGIS E.O. 2020-015 (2020, 1015:1.)); 2020-016 (NH LEGIS E.O. 2020-016 (2020, 1016:1.)); 2020-017 (NH LEGIS E.O. 2020-017 (2020, 1017:1.)); 2020-018 (NH LEGIS E.O. 2020-018 (2020, 1018:1.)); 2020-020 (NH LEGIS E.O. 2020-020 (2020, 1020:1.)); 2020-021 (NH LEGIS E.O. 2020-021 (2020, 1021:1.)); 2020-022 (NH LEGIS E.O. 2020-022 (2020, 1022:1.)); 2020-023 (NH LEGIS E.O. 2020-023 (2020, 1023:1.)); 2020-024 (NH LEGIS E.O. 2020-024 (2020, 1024:1.)); 2020-025 (NH LEGIS E.O. 2020-025 (2020, 1025:1.)); 2021-01 (NH LEGIS E.O. 2021-01 (2021, 1001:1.)); 2021-02 (NH LEGIS E.O. 2021-02 (2021, 1002:1.)); 2021-04 (NH LEGIS E.O. 2021-04 (2021, 1004:1.)); 2021-05 (NH LEGIS E.O. 2021-05 (2021, 1005:1.)); 2021-06 (NH LEGIS E.O. 2021-06 (2021, 1006:1.)); 2021-08 (NH LEGIS E.O. 2021-08 (2021, 1008:1.)); and 2021-010 (NH LEGIS E.O. 2021-010 (2021, 1010:1.)), related to the COVID-19 State of Emergency, for potential impact on the terms of this section. The state of emergency was allowed to expire on June 11, 2021. See also 2021, 91:301, eff. July 1, 2021, regarding application of Emergency Orders.
483-B:5-b Permit Required; Exemption.
I. (a) No person shall commence construction, excavation, or filling activities within the protected shoreland without obtaining a permit from the department to ensure compliance with this chapter. Projects which have no impact on water quality and which follow department rules shall qualify for a permit by notification. The owner may proceed with the proposed project immediately upon receipt of written notice from the department that a complete and accepted notification has been received by the department. A notification shall be complete and accepted provided it meets or exceeds all of the minimum standards under RSA 483-B:9, includes a notification form signed by the owner of property, the name and address of the property owner, the address of the site on which the work will occur, the name of the jurisdictional waterbody, the tax map and lot number on which the proposed work will occur, plans clearly and accurately depicting the work to be completed relative to the reference line of the jurisdictional waterbody, photographs of the area to be impacted, and identification of those project criteria listed below that would qualify the project for a permit by notification. Such project criteria shall include:
(1) Construction, excavation, and filing, or other activity that impacts less than 1,500 square feet and adds no more than 900 square feet of impervious area within a protected shoreland area.
(2) Construction, excavation, and filling, directly related to stormwater management improvements and erosion control projects or environmental restoration or enhancement projects.
(3) Maintenance, repairs, and improvements of public utilities, public roads, and public access facilities.
(4) Any similar activities defined as qualified for a permit by notification by rules of the department.
(b) The permit application fee shall be the base fee specified in this subparagraph plus an impact fee of $.20 per square foot of area affected by the proposed activities and shall be deposited in the water resources fund established under RSA 482-A:3, III. For projects that qualify for permit by notification under this paragraph or RSA 483-B:17, X,, the base fee shall be $200 for restoration of water quality improvement projects, and the base fee shall be $400 for all other permit by notification projects.
(c) If the application is denied after relying on the recommendations of the department, the application fee shall be refunded to the applicant within 30 days of such denial.
II. Timber harvesting operations permitting requirements shall be in accordance with RSA 485-A:17, IV and therefore shall be exempt from the permitting requirement under paragraph I.
IV. Impacts in the protected shoreland that receive a permit in accordance with RSA 482-A and commercial or industrial redevelopment in accordance with RSA 485-A:17 shall not require a permit under this section.
IV-a. At the time of the permit application, the applicant shall provide postal receipts or copies, verifying that the governing body of the municipality or municipalities in which the property is located and the local river management advisory committee, if the project is within a designated river corridor defined in RSA 483:4, XVIII and contains river and river segments designated in RSA 483:15, and all abutters have been notified of the application by certified mail. Applicants for the construction of public roads, public utility lines and associated structures and facilities, and public water access facilities shall only be required to provide postal receipts or copies, verifying that the governing body of the municipality or municipalities in which the property is located, and the local river management advisory committee if the project is within a designated river corridor defined in RSA 483:4, XVIII and contains river and river segments designated in RSA 483:15, have been notified of the application by certified mail.
IV-b. No permits issued by the department pursuant to this chapter that involve private, non-federal undertakings shall require coordination with or clearance by the New Hampshire division of historical resources.
V. (a) Within 30 days of receipt of an application for a permit or 30 days of receipt of an application for a permit that will require a waiver of the minimum standards of RSA 483-B:9, the department shall request any additional information reasonably required to complete its evaluation of the application, and provide the applicant with any written technical comments the department deems necessary. Any request for additional information shall specify that the applicant submit such information as soon as practicable and notify the applicant that if all of the requested information is not received within 60 days of the request, the department shall deny the application.
(b) When the department requests additional information pursuant to subparagraph (a), the department shall, within 30 days of the department's receipt of the information:
(1) Approve the application and issue a permit; or
(2) Deny the application, and issue written findings in support of the denial; or
(3) Extend the time for rendering a decision on the application for good cause and with the written agreement of the applicant.
(c) Where no request for additional information is made, the department shall, within 30 days of receipt of the application for a permit or 30 days of receipt of an application for a permit that will require a waiver of the minimum standards of RSA 483-B:9, approve or deny the application with written findings in support of the decision.
(d) Within 5 business days of receipt of a permit by notification filing, the department shall issue a written notice to the property owner or agent stating that the notification has either been accepted or rejected. If the department does not respond within the 5-day period, the property owner or agent may submit to the department a written request for a response. A request submitted electronically by the applicant shall constitute a written request provided that the applicant has previously agreed to accept electronic communication. If the department fails to respond to the written request within an additional 5 days the property owner or agent shall be deemed to have a permit by notification and may proceed with the project as presented in the notification filing. 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 RSA 485-A relative to water quality.
(e)(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 (b) and (c), 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 and RSA 485-A relating to water quality.
(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 (e)(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.
(f) All applications filed in accordance with the rules adopted by the department under RSA 483-B:17 and which meet the minimum standards of this chapter shall be approved and a permit shall be issued.
(g) The department may extend the time for rendering a decision under subparagraphs (b)(3) and (c)(3), without the applicant's agreement, on an application from an applicant who previously 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 483-B:18. The length of such an extension shall be no longer than reasonably necessary to complete the review of the application, and shall not exceed 30 days unless the applicant agrees to a longer extension. The department shall notify the applicant of the length of the extension.
(h) 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 482-A, 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 482-A, 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 initiated 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.
VI. All permits issued pursuant to this chapter shall be valid for a period of 5 years. Requests for extensions of such permits may be made to the department by providing such information as is required by rules adopted pursuant to RSA 541-A. The department shall grant one extension of up to 5 additional years, provided the applicant demonstrates all of the following:
(a) The permit for which extension is sought has not been revoked or suspended without reinstatement.
(b) Extension would not violate a condition of law or rule.
(c) The project is proceeding towards completion in accordance with plans and other documentation referenced by the permit.
(d) The applicant proposes reasonable mitigation measures to protect the shorelands and public waters of the state from deterioration during the period of extension.
VII. Maintenance and repair of state roadways undertaken by the department of transportation shall be exempt from the permitting requirements of this chapter, provided such roadway is not expanded.
VIII. The drilling of geotechnical borings and test wells undertaken by the department of transportation for the purpose of gathering design information shall be exempt from the permitting requirements of this chapter, provided that any vehicles used shall be operated in a manner that minimizes disturbance to the natural woodland buffer; drilling operations shall be managed to avoid impact on water quality; drill holes shall be backfilled with drill spoil or filled with clean material or grout; drill cuttings not used to backfill drill holes shall be removed or stabilized; and equipment shall be operated and maintained to avoid spillage of fluids including, but not limited to, oil, gas, antifreeze, or hydraulic fluids.
IX. The commissioner of the department of environmental services may enter into a memorandum of agreement with the commissioner of the department of transportation for the construction of new roads, and the maintenance of existing roads, not covered by paragraph VII, provided that the department of transportation has incorporated appropriate protective practices in its projects which are substantially equivalent to the requirements established by the department of environmental services under this chapter.
X. Applications for projects solely funded by municipal, county, state, or federal entities shall incur a permitting fee no greater than $3,750.
Source. 2008, 5:12, 27, II; 171:18. 2009, 218:9-11. 2010, 295:5-7. 2011, 141:1, eff. Aug. 6, 2011; 143:3, eff. Aug. 6, 2011; 224:395-397, eff. June 29, 2011. 2017, 225:3, 4, eff. Sept. 9, 2017. 2018, 123:1, eff. July 29, 2018. 2019, 346:285, 286, eff. July 1, 2019. 2021, 109:1, eff. July 1, 2021.