Wetlands 101: Wetlands 101: Intro to Wetlands & PermittingIntro to Wetlands & Permitting

Sandra Crystall, PWSWetlands BureauNovember 2009

Introduction

• Wetlands protection– Why? Where? What?

• Permitting process and requirements• Changes

– 2009 legislative session– Rulemaking - current and future

= Highlighted changes

New!

Wetlands Dredge and Fill Law: RSA 482-A:1... For the Public Good

• Commerce, recreation and aesthetic enjoyment.

• Adequate groundwater levels.• Ability to handle the runoff of waters.• Natural ability of wetlands to absorb flood

waters and silt.• Habitats and reproduction areas for plants,

fish and wildlife.• Sources of nutrients for finfish, crustacea,

shellfish and wildlife.• Interests of the general public.

Commercial & Economic

• Timber• Fishing & Hunting• Tourism

– $1.8 billion (estimated) to the NH economy from boating, swimming, fishing, public drinking water, waterfront property.

– Nearly 67% is due to freshwater boating

• In 2006, expenditures in NH totaled $525 million for fishing, hunting and wildlife watching, and swimming.

Public Opinion Poll in the Study of Select Economic Values of New Hampshire Lakes, Rivers, Streams and Ponds - Phase III Report (2004)

Water Quality• Intercept surface runoff & shallow

groundwater:– Remove or retain inorganic nutrients– Process organic wastes– Reduce suspended sediments.

Piscassic River, Epping

For water-quality improvement, the location of the wetland is much more important than either the degree of wetness or the size of the wet area.

Maintain Water Supply

• Wetlands:– Maintain stream flows

during dry periods– Replenish groundwater

Flood Mitigation and Storage

Shoreline Stabilization

• Wetlands protect shorelines against erosion.

• Plants – Hold soil in place with their roots– Absorb the energy of waves– Break up the flow of river and stream currents.

Wildlife Habitat

• Approximately 66% of New Hampshire’s species of greatest conservation concern are wetland- or surface-water dependent.

Swamp (Forested Wetland)

More wet Less wet

ScrubScrub--ShrubShrub

Marsh Wet Meadow

Tidal Wetlands and Waters

Bogs

Vernal Pool

What Areas are Protected under RSA 482-A?

• Wetlands (tidal and nontidal)• Surface waters and their banks• Other resource areas

Administrative Rules: Env-Wt 100 – 800Enforcement Rules : Env-C 614

Lakes, Streams, Rivers

High Water Mark

Top of Bank

Jurisdiction: From Surface Waterto the Top of Bank

• The transitional slope immediately adjacent to the edge of a surface water body, the upper limit of which is usually defined by a break in slope.

Other Jurisdictional Areas

• Sand dunes• Upland tidal buffer zone

(100 ft. beyond HOTL)• Uplands within 100 feet of

prime wetlands

Municipal Land Use Regulations: Use the "Standard" Wetlands Definition When Referring to Wetlands.

• 674:55 Wetlands: Wherever the term is used in regulations and ordinances... such term shall be given the meaning in RSA 482-A:2, X

• 482-A:2, x - An area that is inundated or saturated by surface waterwater or groundwater at a frequency and duration sufficient to support, and that under normal conditions does support, a prevalence of vegetationvegetationtypically adapted for life in saturated soilsoil conditions.

• This definition does not include most surface waters!

Wetland Delineation

“under normal circumstances”• Water at or near the surface• Hydric soils• Prevalence of wetland vegetation

1987 Corps of Engineers Wetlands Delineation Manual, Technical Report Y-87-1, January 1987.

2004 v3 Field Indicators for Identifying Hydric Soils in New England

1988 USFWS National List of Plant Species That Occur in Wetlands: Northeast Region (1988)

Water at or Near the Surface...

Hydric Soils

Wetland Vegetation(Hydrophytes)

• National List of Plant Species That Occur in Wetlands: Northeast Region (1988)

• Wetland-indicator status indicates the species frequency of occurrence in wetlands.

www.plants.usda.gov/wetland.html

Plant Adaptations

shallow rootsbuttressed trunk

White pine in wetland

Dredge• Disturbance of soils in a wetland or other

jurisdictional area

Fill• Deposition of any material gravel, soil, trash,

piles of brush, lawn clippings, manure, slash, etc.

Construction• Any type of structure -- culvert, dock, shed,

etc.

What Activities are Regulated?

Some Exempt Activities in Law or Rules (Env-Wt 303.05)

• Addition of native vegetation to enhance wetlands.

• Clean out fire pond and intake area of dry hydrant when necessary without a permit, if pond:– Provides water for municipal firefighting purposes

as approved by a local fire chief• Hand raking of leaves from shoreline (at

drawdown).• Maintenance dredge of gravel-washing ponds

Some Exempt Activities: Beaver PipesSB 124 (RSA 210:9, II )

• .. A landowner... may destroy beaver, remove beaver dams, or installbeaver pipes or beaver fences on property under their control to protect property, public highways, or bridges from damage or submersion [with the permission of the owner of lands affected, if applicable].

• Dam removal shall be allowed without a permit if,– Machinery does not enter the water and– Filling or dredging in or adjacent to surface water, wetlands, or their banks

does not occur. – Removal shall be done in a gradual manner (no sudden release of impounded

water so as to cause erosion, siltation, or a safety hazard downstream.)• Beaver pipes - no more than 3 temporary structures with the widest

dimension no larger than 15 inches that is placed in a beaver dam to allow water passage to maintain a specific water surface elevation

• Beaver fences - posts and fencing installed at culverts in such a manner as to either encourage or discourage beaver damming against the fence.

New!

Permit Applications and NotificationsThrough Municipal

Clerk• Standard Dredge & Fill• Minimum Impact

Expedited • Minimum Impact

Agriculture• Permit By Notification

Directly to DES• Notification of Routine Roadway

& Railway Maintenance Activities

• Notification of Minimum Impact Forestry

• Notification of Minimum Impact Trails

• Seasonal Dock Notification for Lakes & Ponds

• Recreational Mineral Dredging• Upcoming: Utility

Maintenance NotificationNew!

Notification to Designated River Local Advisory Committee (HB102)

• As of July 2009, if the project is within 1/4 mile of a Designated River, the applicant must send, by certified mail, a copy of the application to the river’s Local Advisory Committee before the package goes to the Municipal Clerk. The certified mail receipt must accompany the sets of the application package that are provided to the municipal clerk.

• This applies to the application types that are required to be signed by the municipal clerk.

New!

http://des.nh.gov/organization/divisions/water/wmb/rivers/lac/documents/drc_lac_contacts.pdf

Conservation Commission ReviewTimeframes

• Standard Application: – 14 days from Town Clerk signature to request intervention– 40 days from Town Clerk signature to provide report to DES

• Expedited Application:– Conservation Commission signature required before Bureau can

review as expedited (otherwise reviewed as standard).

Permit By Notification– Permittee can start work within 25 days of TC signature if no CC

signature (or within 10 days if signed by CC).

Generalized Project Classification Scheme

Tidal wetlands, TBZ, prime

wetlands and adjacent upland,

bog, marsh

Protected Resource

Permanent dock; work in the water

Repair in-kind,seasonal dock

Type of Work

T & E species; Exemplary natural

comm.

NaturalHeritageBureau

>200 lf50 – <200 lfBank Length

> 20,0003,000 –20,000

< 3,000Area (sq. ft.)

MajorMinorMinimum

<50 lf

Repair in-kind for all but

prime wetlands

Use Internet Explorer - this will soon be compatible with other browsers

Measuring Impacts to a Stream(rulemaking underway proposes a new approach)

50’ of impact

Intermittent stream Perennial stream

50’ of Bank A 50’ of Bank B 50’ of streambed

150’ of impact

50’

Bank A Bank B

Field inspect to ensure maps and plans represent reality!

Application Requirements (Env-Wt 300 & 500)

Applications vary in their requirements:• Fee • USGS map• Tax map (labeled)• Abutters' names and addresses• Photographs• Detailed plans• Address avoidance and minimization, need, and other

requirements in Env-Wt 300

Avoidance and MinimizationEnv-Wt 302.03

• The applicant shall .... provide evidence which demonstrates that [the] ... proposal is the alternative with the least adverse impact to areas and environments under the department's jurisdiction.

• To evaluate alternatives – requires applicant to define the project (i.e., need)

• To determine least adverse impact -- requires applicant to assess resources on the site.

More Impact to Shoreline

Less Impact to Shoreline

Is this Minimizing Wetland Impacts?

Pond Design

wetlandpropertyboundary

proposedpond location

Avoid Stream Crossings

No avoidance

Minimization Avoidance

Potential Choices for a Stream Crossing

• Avoid the crossing (access property elsewhere)

• Bridge• Arch culvert (open bottom)• Pipe culvert (sized properly and

embedded)

– See proposed stream rules!New!

20 Questions Env-Wt 302.04

• Rarity of the resource• Impact ... on quantity or quality of surface and

ground water?• Cause or increase flooding, erosion, or

sedimentation?• Impact ... on functions and values of the total

wetland or wetland complex? • Impact on plants, fish, and wildlife?• Impact on areas designated for protection?

20 Questions (contd)

• Impact upon abutting owners?• Cumulative impact?• Reflect or redirect current or wave energy which

might cause damage or hazards ? Redirects water from one watershed to another?

• Effect on public rights of passage or access, public commerce, navigation, recreation?

• Benefit of a project to the health, safety, and well being of the general public?

Construction Techniques Minimize Impacts Too!

• Directional drilling• Flume stream crossing• Erosion and sedimentation

controls around sensitive resources

Municipally Designated Prime Wetlands

• Communities can designate high value wetlands as prime wetlands after study and vote by residents.

• DES applies more protective rules to (some) projects that impact areas in or within 100 feet of prime wetlands (Chapter Env-Wt 700):

• ... the proposed activity, either alone or in conjunction with other human activity, will not result in the significant net loss of any of the values ... in RSA 482-A:1

Prime Wetlands Public Hearing No Longer Required

Only existing standards of RSA 482-A:8 • For projects

– With significant impact on the resources, or – Of substantial public interest.

New!

Compensatory Mitigation: Where does it apply?

• Minor projects with permanent jurisdictional impacts greater than 10,000 square feet

• All major projects• Hierarchy of process: avoid, minimize, compensate.• Meet or exceed ratios.• Require functional assessments.• Provide standards to be met for upland

buffer preservation.

Mitigation Ratios

10 : 11 : 11.5 : 1All other jurisdictional areas

3 : 12 : 1NAUndeveloped TBZ

10 : 11.5 : 11.5 : 1Forested

15 : 12 : 13 : 1Tidal Wetlands

15 : 12 : 1NABog

Preservation of Upland Buffer Area

RestorationCreationResource Type

Aquatic Resource Fund Mitigation Option

• Additional option for projects where it has been determined there are no local mitigation opportunities available. – Example, "smaller" projects (just over 10,000 square feet of

impact)

• Process involves providing a payment into a fund that can be spent in the “watershed” where impacts occurred.

• Funds go toward wetland creation, restoration, preservation of land adjacent to aquatic resources, or habitat improvement.

Trails Notification and Forestry Notification (Minimum Impact w/ BMP manuals)

Projects for Notification for Routine Roadway Maintenance

• Culvert Extension at the Same Location • Culvert Replacement and Relocation • Embankment Stabilization • Headwall Repair, Replacement and

Construction • Roadside Ditch Maintenance and Culvert

Cleaning

Replace Culvert in Same Location

“Project Template”

Guidance & Project Completion Form

Qualifying for PBN

• Maintenance or repair must be – In-kind replacement (material type may differ).

• Culvert crossing must be only for an existing lot of record.– No subdivisions!

• No crossings of perennial streams• Not transferable nor “upgradeable.”

Duration of Permits(Env-Wt 502.01)

• Five years for issued permits and completed PBNs, except:

• Minimum impact forestry notifications shall be valid fortwo years from date of issuance by the department of a completeness letter

• Ten Years for: – Public transportation projects that receive an individual federal

permit from the US Army Corps of Engineers...

• Gold dredge permits shall expire at the end of the calendar year in which they are issued.– Upcoming - Utility Maintenance Notification is an annual

permit.New!

Review by the US Army Corps of Engineers

After DES issues wetlands permit:• Minimum project: Work may start.• Minor project: Maximum 30-day waiting

period before work may start.• Major project: Must be notified by the

Corps before work may start.

Appeals

• Appeal to DES Wetlands Bureau “Request reconsideration”

– 30 days from DES decision

• If DES reaffirms initial decision, appeal decision to Wetlands Council

– 30 days from DES reconsideration decision.

• Final appeal option is to the NH Supreme Court

Immediate threat to public safety, public health, or private property?

• Five-day “window of opportunity”– Problem became known or occurred in last five days

• Call the DES Wetlands Bureau to obtain authorization for emergency work.

• An emergency authorization form will be faxed to applicant for posting at the work site.

• A Standard Dredge and Fill application may be required to be submitted later.

How You Can Help UsBe More Effective

• Be our eyes and ears.– Communicate to us what you learn on site walks.– Provide to us minutes of meetings and information

about site walks.– Don’t sign applications for projects about which you

have concerns.• Establish procedures for town reviews

– Coordinate with municipal clerk.

Establish Procedures for Town Reviews

For PBN forms:– Will the applicant approach the Conservation

Commission first?

For Minimum Impact Expedited applications:– Don’t hold onto applications for extended periods of

time!– Don’t sign it if you have concerns (but send it to DES).

Underway: Proposed Stream Crossing Rules• Proposed rules classify requirements that apply

by:– Size of contributing watershed

(20/ 200 /640 acres)– Slope (<7.5%, <20%, >20%)– Special resources

• Designated river• Mapped floodplain• NHB• Prime wetland

•• http://des.nh.gov/organization/divisions/water/wetlands/sthttp://des.nh.gov/organization/divisions/water/wetlands/streams_crossings.htmreams_crossings.htm

Comment periods ends Friday, Nov 20 at 4 pm.

Near Future: Rules will be developed for permitting forestry activities in prime wetlands

(see HB 384)(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.

Future: Regionalizing the 1987 Corps of Engineers’ Wetland Delineation

Manual and National Hydric Soil Indicators

• Update Corps manual to reflect state-of the-art science.

• Improve its sensitivity to regional differences.

• Address National Academy of Sciences - National Research Council recommendations.

• Establish a mechanism to propose, review, and approve periodic updates.

• Goal is to identify all wetlands, without regard to current regulatory policy.

2009 Legislative Session

• SB 124 Wetland permit exemption for installation of beaver pipes

• HB 102 Added River LAC notification requirement

• HB 384 Authorized waiver process for forest management in prime wetlands (PW); utility work w/in existing ROW (incl adj to PW); no public hearing req’d for PW

• SB 65 Expanded in-lieu fee to stream mitigation; increased admin fee.

New!

The DES OneStop tool is being improved (including making it accessible by most browsers)

Resources

• DES Wetlands Bureau: – www.des.nh.gov– wetmail@des.nh.gov– (603) 271-2147 (or -4193, my number)

DES’s Enews for wetlands decision report• Preapplication meetings with permitting

inspector.• Outreach workshops for towns and other

groups.• Written guidance and policies.

The health of our waters is the principal measureof how we live on the land.

Luna Leopold