WATER MANAGEMENT AND PROTECTION
FILL AND DREDGE IN WETLANDS
482-A:11 Administrative Provisions.
I. The commissioner shall adopt reasonable rules, pursuant to the rulemaking provisions of RSA 541-A, to implement the purposes of this chapter.
II. Decisions of the department or council under this chapter shall be consistent with the purposes of this chapter as set forth in RSA 482-A:1. Before granting a permit under this chapter, the department may require reasonable proof of ownership by a private landowner-applicant. If a permit is granted, the decision of the department may contain reasonable conditions designed to protect the public good. No permit to dredge or fill shall be granted if it shall infringe on the property rights or unreasonably affect the value or enjoyment of property of abutting owners.
III. (a) Upon written notification to the department by a municipal conservation commission, a local river management advisory committee, or the New Hampshire Rivers Council 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, local river management advisory committee, or the council, or until 40 days from the date of filing with the municipal clerk of such notice, whichever occurs earlier, subject to an extension of up to 40 days, as permitted by the commissioner, for good cause shown. 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 commissioner grants an extension, the time limits prescribed by RSA 482-A:3, XIV(b) shall be suspended for up to 40 days as agreed to by the applicant and the department. If a conservation commission, a local river management advisory committee, or the New Hampshire Rivers Council 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, local river management advisory committee, or the New Hampshire Rivers Council 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.
(b) Relative to any expedited permit under paragraph VI, the provisions of subparagraph (a) shall be modified as follows:
(1) The 40-day suspended action limit is reduced to 21 days; and
(2) The notification by a municipal conservation commission of intended investigation shall be assumed unless the application filed under RSA 482-A:3 was signed by the conservation commission, or, if one has not been established in the municipality, by the local governing body, in which case the provisions of subparagraph (a) shall not apply.
IV. (a) The department shall not grant a permit with respect to any project to be undertaken in an area mapped, designated, and filed as a prime wetland pursuant to RSA 482-A:15, or within 100 feet of any prime wetland where a 100 foot buffer was required at the time of designation, unless the department first notifies the local governing body, the planning board, if any, and the conservation commission, if any, in the municipality within which the wetlands lie, either in whole or in part, of its decision. Any such permit shall not be issued unless the department is able, specifically, to find clear and convincing evidence on the basis of all information considered by the department, and after a public hearing, if a public hearing is deemed necessary under RSA 482-A:8, that the proposed project, either alone or in conjunction with other human activity, will not result in the significant net loss of any of the values set forth in RSA 482-A:1. This paragraph shall not be construed so as to relieve the department of its statutory obligations under this chapter to protect wetlands not so mapped and designated.
(b)(1) A property owner may request from the department a waiver from subparagraph (a), under rules adopted by the department, to perform forest management work and related activities in the forested portion of a prime wetland or its 100-foot buffer, where such buffer was required at the time of designation, that do not qualify under the notification of forest management or timber harvest activities having minimum wetlands impact process. The request for the waiver shall include, but not be limited to:
(A) A sketch of the property depicting the best approximate location of each prime wetland and its 100-foot buffer, where such buffer was required at the time of designation, in which work is proposed and the location of proposed work, including access roads;
(B) A written description of the work to be performed and a copy of the notice of intent to cut, if applicable; and
(C) A list of the prime wetland values as identified by the municipality in designating each prime wetland under RSA 482-A:15.
(2) A waiver shall be issued only when the department is able to determine there will be no significant net loss of wetland values as identified in subparagraph (b)(1)(C) and RSA 482-A:1. If the department determines that the proposed work may cause a significant net loss of wetland values, the department may require the submittal of additional information. The department may place conditions on the waiver that it deems necessary to protect the prime wetland resource and shall set the term of the permit.
(3) At the time that the waiver request is submitted to the department, the applicant shall also submit a copy of the waiver request and all supporting documentation, via certified mail, to the local governing body, the planning board, if any, and the conservation commission, if any, of the municipalities in which any prime wetlands associated with the application are located. Where a prime wetland associated with the application extends into an abutting property, the property owner requesting the waiver shall provide notice to the owner of that abutting property. A waiver shall not be issued by the department prior to 14 days from its receipt of the waiver request. A municipal conservation commission may request an extension on such waiver issuance, not to exceed 14 days.
(4) The department shall adopt rules under RSA 541-A relative to:
(A) The process and criteria for considering and granting waiver requests made pursuant to RSA 482-A:11, IV(b)(1), including:
(i) Methods for determining whether a proposed forest management project may result in a significant net loss of wetland values.
(ii) Conditions that may be placed on a waiver when deemed necessary to protect the prime wetland resource.
(iii) Criteria for granting extensions of waiver issuances pursuant to RSA 482-A:11, IV(b)(3).
(iv) Specified criteria for identifying abutters and subsequent notification.
(B) Filing fees for waiver applications.
(c) A property owner may request a waiver from the department, under rules adopted by the department under RSA 541-A, from the provisions of this chapter to perform work not addressed under subparagraph (b) within a portion of any 100-foot buffer of a prime wetland on his or her property as provided in subparagraph (a). At the time of the waiver request, the property owner shall notify, by certified mail, the local governing body, the planning board, if any, and the conservation commission, if any, of the municipalities in which the waiver is being sought that a waiver is being sought from the department. Where a buffer associated with the application extends into an abutting property, the property owner requesting the waiver shall provide notice to the owner of that abutting property.
V. Notwithstanding any rules adopted by the commissioner defining minor projects, a series of minor projects undertaken by a single developer or several developers over a period of 5 years or less may, when considered in the aggregate, amount to a major project in the opinion of the department; all such related projects shall be subject to a public hearing as provided in RSA 482-A:8. A series of minor projects shall be considered in the aggregate if they abut or if they are a part of an overall scheme of development or are otherwise consistent parts of an eventual whole.
VI. The commissioner shall adopt rules pursuant to RSA 541-A establishing an expedited application and permitting process for certain minimum impact projects. The provisions of RSA 482-A:3, I and paragraph III of this section shall apply.
VI-a. The commissioner shall adopt rules pursuant to RSA 541-A establishing a permit by notification process for certain minimum impact projects. The provisions of RSA 482-A:3, I(a) and (c) shall apply.
VII. The commissioner shall adopt rules, pursuant to RSA 541-A, identifying those activities within the jurisdiction of RSA 482-A that may be conducted without obtaining a permit and those that may be conducted without a permit if the project is registered with the department, consistent with the provisions of this chapter.
VIII. The commissioner shall adopt rules pursuant to RSA 541-A relative to the waiver of existing standards provided for in RSA 482-A:26, III(b). Such rules shall list the specific criteria to be used by the commissioner in determining whether a waiver will be granted.
IX. The commissioner shall adopt rules, pursuant to RSA 541-A, relative to the circumstances under which the commissioner may grant a waiver of rules adopted pursuant to this chapter. Such rules shall list the specific criteria to be used by the commissioner in determining whether a waiver will be granted.
X. The department shall have the authority to grant permits, in accordance with the rules adopted under RSA 482-A:11, VI for expedited application and permitting, for any projects funded through the Emergency Watershed Protection Program of the Natural Resources Conservation Service, United States Department of Agriculture, when such projects are necessary to safeguard lives and property from floods and the products of erosion when a natural disaster is causing or has caused a sudden impairment of the watershed.
XI. The commissioner shall adopt rules pursuant to RSA 541-A, establishing registration forms, the registration renewal process, and the display of registration numbers; and the registration process for the installation of seasonal docking structures and the repair or replacement of legally existing docking structures pursuant to RSA 482-A:3, IV-a.
Source. 1989, 339:1. 1991, 20:6; 28:1. 1993, 30:1. 1996, 296:47. 2002, 272:17, 18. 2004, 116:5. 2007, 211:1; 278:1. 2008, 363:3. 2009, 185:2. 2012, 235:1, 3, eff. Aug. 17, 2012. 2015, 236:5, 6, eff. Sept. 11, 2015. 2018, 279:4, eff. Jan. 1, 2019. 2020, 37:82, eff. Jan. 1, 2021.