State Overhauls Wetlands Rules

New Hampshire’s wetlands program is about to be transformed by a regulatory overhaul.  After years of stakeholder meetings, a new set of wetlands rules adopted by the New Hampshire Department of Environmental Services (NHDES) will become effective on December 15, 2019.  NHDES is conducting training sessions throughout the state to ready the regulated community, as the new rules will bring some significant changes to how and when permits can be obtained for work in wetlands subject to the state’s wetlands statute, RSA 482-A.

The new rules are complex and more detailed than the existing rules, with new permit categories, acronyms and cross-references to relevant federal and state laws.  They could ultimately provide more certainty on proposed project permitting paths, application requirements and conditions for approval. The rules reflect an attempt to streamline the review of projects with presumably little potential wetlands impacts while requiring better scientific assessment and more protection for the most sensitive areas.

Because waterfront docks can simultaneously trigger wetlands laws, the public trust doctrine and private property rights, the rules reach for balance. For instance, installing a temporary, seasonal dock with two boat slips on a residential lakefront property can qualify for simple notification to the agency, if not a full exemption. However, installing a major dock system in a tidal or other area that meets the agency’s newly adopted definition of “priority resource area” could involve a lengthy permitting process, including certified wetlands delineations and approval by New Hampshire’s Governor and Executive Council.

To its credit, the agency has developed mechanisms for providing more technical assistance to the regulated community.  A new online tool called the “wetlands permit planning tool,” will help to define the permitting path for many projects by providing wetlands permit map locations, municipally designated prime wetland maps, the location of “priority resource areas” and coastal layers with projected sea-level rise, among other things.  The layers of information could not only identify the need for a different permitting process, but also prompt applicants to revise their projects before applying for a permit.

Existing statutory requirements remain intact despite the comprehensive regulatory overhaul, but the new rules will certainly influence how the wetlands statute is implemented going forward.  Besides making fundamental changes to the permit program, the agency has amended legally significant terms used in the statute.  It remains to be seen whether the amendments would affect the right of some persons to appeal a particular wetlands permit to the agency’s administrative appeals body, the NHDES Wetlands Council.

About the Author: Maureen Smith

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