(b) For purposes of (a), above, the following shall apply:

1. (1) The subject property shall include any lots that have been subdivided from the property if the lots were part of the same property when one or more of the prior projects occurred; and
2. (2) Previous work on the subject property shall include all dredging, filling, and construction activities on the property, regardless of whether the work was done pursuant to an exemption or any form of approval from the department, or was done illegally.

(c) Classification as a major impact project based on (a) or (b), above, shall:

1. (1) Take precedence over any lower classification; and

2. (2) Not be eligible for a waiver or downgrade of the classification.

   Source. #12804, eff 12-15-19

   Appendix A: State Statutes Implemented

   Rule Section(s)

   State Statute(s) Implemented

   Federal Statutes, Regulations Implemented

   Env-Wt 400 (See additional statutes for specific rules below)

   RSA 482-A:1 - 4, 6, 8 - 34

   Clean Water Act, 33 U.S.C. Chapter 26, Subchapter IV, § 1344 (Permits for Dredged or Fill Material); 33 CFR Parts 322 & 323; USACE Gen. Permit No. NAE-2016-02415

   Env-Wt 407.02

   RSA 482-A:1 - 4, 6, 8 – 27; RSA 212-A; RSA 217-A

   Appendix B: Incorporated References

   Rule

   Title (Date)

   Obtain From:

   U.S. Army Corps of Engineers

   New England District

   696 Virginia Road

   Concord, MA 01742-2751

   (978)318-8338

   Env-Wt 406.01(a)

   Wetlands Delineation Manual, Technical Report Y-87-1 (January 1987)

   Regional Supplement to the Wetlands Delineation Manual: Northcentral and Northeast Region, Version 2.0 (January 2012)

   Available to download at no cost from:

   New England District > Missions > Regulatory > Jurisdiction and Wetlands > Wetland Delineation Manual (army.mil)

   Available to download at no cost from:

   ERDC/EL TR-12-1 "Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Northcentral and Northeast Region: (Version 2.0)" (army.mil)

   Env-Wt 406.01(b)

   Northcentral and Northeast 2016 Regional Wetland Plant List, Version 3.3 (2016)

   Available to download at no cost from:

   http://wetland-plants.usace.army.mil/nwpl_static/data/DOC/lists_2016/Regions/pdf/reg_NCNE_2016v1.pdf

   Env-Wt 406.01(c)

   Field Indicators for Identifying Hydric Soils in New England, Version 4 (2017)

   New England Interstate Water Pollution Control Commission

   Wannalancit Mills

   650 Suffolk Street, Suite 410

   Lowell, MA 01854

   Phone: (978) 323-7929

   Fax: (978) 323-7919

   General Email: mail@neiwpcc.org

   Available to download at no cost from:

   Indicator A1: Histosol (neiwpcc.org)

   Env-Wt 406.01(d)(1)

   Identification and Documentation of Vernal Pools in New Hampshire, 3^rd Ed. (2016)

   NH Fish and Game Department

   11 Hazen Drive

   Concord, NH 03301

   Phone: (603) 271-3421

   HQ Fax: (603) 271-5829

   Available to download at no cost from:

   http://www.wildlife.state.nh.us/nongame/documents/vernal-pool-manual.pdf

   Env-Wt 406.01(d)(2)

   “Vernal Pool Assessment” draft guidance dated 9-10-2013 and form dated 9-6-2016, Appendix L of the USACE New England District Compensatory Mitigation Guidance

   U.S Army Corps of Engineers

   New England District

   696 Virginia Road

   Concord, MA 01742-2751

   (978)318-8338

   Available to download at no cost from:

   http://www.nae.usace.army.mil/Portals/74/docs/regulatory/StateGeneralPermits/NEGP/VPAssessmentDRAFT.pdf

   http://www.nae.usace.army.mil/portals/74/docs/regulatory/Mitigation/2016_New_England_Compensatory-Mitigation_Guidance

   Env-Wt 406.03(b)(2)c.5.

   Utility BMPs:

   Best Management Practices Manual – Utility Maintenance in and Adjacent to Wetlands and Waterbodies in New Hampshire (2019)

   NH Department of Natural & Cultural Resources

   Division of Forests and Lands
   172 Pembroke Road
   Concord, NH 03301
   Tel: (603) 271-2214
   Fax: (603) 271-6488

   Available to download at no cost from:

   new_final_utility_bmp_manual_3_8_19.pdf (nh.gov)

   Env-Wt 406.06(c)

   Applied River Morphology, 2nd edition (1996)

   Wildland Hydrology

   11210 N. County Road 19
   Fort Collins, CO 80524

   Phone: (970) 568-0002

   Email:wildland@wildlandhydrology.com

   Available new for $71.76 + $10.00 shipping from

   https://wildlandhydrology.com/books/?id=32&course=Applied+River+Morphology

   Available used or new from Amazon.com and other sellers from ~$63 (used) to ~$155 (new).

   Appendix C: Exemptions from Requirement for Certified Wetland Scientist

   RSA 310-A:79 Exemption. – This subdivision shall not be construed to prevent or to affect:

   I. The practice of soil science by a nonresident having no established place of business in this state when such practice does not exceed, in the aggregate, more than 30 working days in any calendar year, provided such person is legally qualified to practice in a state or country in which the requirements and qualifications for obtaining a certificate are not lower than those specified in this subdivision. Practice for any portion of a day shall be deemed to constitute practice for an entire day.

   II. The work of an employee or a subordinate of a person holding a certificate under this subdivision, or any employee of a person practicing lawfully under paragraph I, done under the direct supervision of a person holding a certificate under this subdivision or a person practicing lawfully under paragraph I.

   III. The practice of officers and employees of the government of the United States or of the state of New Hampshire while engaged within this state in the practice of the profession of soil science or wetland science for the government.

   IV. The determination of a hydric soil boundary or test pit evaluation to the extent permitted pursuant to RSA 485-A:35 for the purposes of septic system design or subdivision application pursuant to RSA 485-A or rules adopted under RSA 485-A. For this work, a municipality shall not require qualifications different from those established pursuant to RSA 485-A:35.

   V. A homeowner from preparing a plan to provide vehicular and utility access to the homeowner's primary residence within 50 feet from the edge of a traveled way; provided, that he or she complies with rules adopted by the department of environmental services and standards adopted by the board.

   RSA 482:2

   II. (a) “Dam” means any artificial barrier, including appurtenant works, which impounds or diverts water and which has a height of 6 feet or more, or is located at the outlet of a great pond. A roadway culvert shall not be considered a dam if its invert is at the natural bed of the water course, it has adequate discharge capacity, and it does not impound water under normal circumstances. Artificial barriers which create surface impoundments for liquid industrial or liquid commercial wastes, septage, or sewage, regardless of height or storage capacity, shall be considered dams.

3. (b) An artificial barrier at a storm water detention basin, which impounds 0.5 acre-foot or less of water during normal conditions, shall not be considered a dam unless its height is 10 feet or greater or its maximum storage is 6 acre-feet or greater.

   RSA 482-A:2

   IV. “Mean high tide” shall be determined according to the published tables and standards of the United States Coast and Geodetic Survey, adjusted to the locality from such tables.

   VII. “Sand dune” shall mean a hill or ridge of sand piled up by the wind and commonly found on the seacoast.

   RSA 482-A:3:

   I. …

(d) At the time the applicant files the application with the department, the applicant shall provide written notice of the proposed project to:

1. (1) All abutters, as defined in the rules of the department, unless exempted in such rules, which shall be provided by certified mail or other delivery method that provides proof of receipt. The applicant shall retain such receipts and provide copies to the department upon request. The department shall have no obligation to verify the identity of abutters or their receipt of notice. Any abutter who has actual notice of the filing of an application shall have no cause to challenge the application based on failure to receive written notice. Nothing in this subparagraph shall prevent the department from taking appropriate action in the event an applicant fails to provide the required notice or provides false information.

2. (2) The local river management advisory committee if the project is within a river corridor as defined in RSA 483:4, XVIII, or a river segment designated in RSA 483:15. Such notice shall be sent by certified mail or other delivery method that provides proof of receipt. The applicant shall retain such receipts and provide copies to the department upon request. The local river management advisory committee shall, under RSA 483:8-a, III(a)-(b), advise the commissioner and consider and comment on the permit application.

   XIV. (a) In processing an application for permits under this chapter, except for a permit by notification, the department shall:

3. (1) Within 14 days of receipt by the department, issue a notice of administrative completeness or send notice to the applicant, at the address provided on the application, identifying any additional information required to make the application administratively complete and providing the applicant with the name and telephone number of the department employee to whom all correspondence shall be directed by the designated department employee regarding incompleteness of the application. Each receipt of additional information in response to any notice shall re-commence the 14-day period until the department issues a notice of administrative completeness. Any notice of incompleteness sent under this subparagraph shall specify that the applicant or authorized agent shall submit such information as soon as practicable and shall notify the applicant or authorized agent that if the requested information is not received within 60 days of the notice, the department shall deny the application.
4. (2) Within 75 days of the issuance of a notice of administrative completeness for projects where the applicant proposes under one acre of jurisdictional impact and 105 days for all other projects, request any additional information that the department is permitted by law to require to complete its evaluation of the application, together with any written technical comments the department deems necessary. Such request and technical comments may be sent by electronic means if the applicant or authorized agent has indicated an agreement to accept communications by electronic means, either by so indicating on the application or by a signed statement from the applicant or authorized agent that communicating by electronic means is acceptable. Any request for additional information under this subparagraph shall specify that the applicant submit such information as soon as practicable and shall notify the applicant that if the requested information is not received within 60 days of the request, the department shall deny the application. The department may grant an extension of this 60-day time period upon request of the applicant.

5. (3) Where the department requests additional information pursuant to subparagraph (a)(2), within 30 days of the department's receipt of a complete response to the department's information request:

   (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; or

   (C) Schedule a public hearing in accordance with this chapter and rules adopted by the commissioner; or

   (D) Extend the time for rendering a decision on the application for good cause and with the written agreement of the applicant; or

6. (4) Where no request for additional information is made pursuant to subparagraph (a)(2), within 75 days from the issuance of the notice of administrative completeness for proposed projects under one acre of jurisdictional impact, or 105 days for all others:

   (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; or

   (C) Schedule a public hearing in accordance with this chapter and rules adopted by the commissioner; or

   (D) Extend the time for rendering a decision on the application for good cause and with the written agreement of the applicant.

7. (5) Where the department has held a public hearing on an application filed under this chapter, within 60 days following the closure of the hearing record, approve the application in whole or in part, and issue a permit or deny the application and issue written findings in support of the denial.

(e) Any request for a significant amendment to a pending application or an existing permit which changes the footprint of the permitted fill or dredge area shall be deemed a new application subject to the provisions of RSA 482-A:3, I and the time limits prescribed by this paragraph. “Significant amendment” means an amendment which changes the proposed or previously approved acreage of the permitted fill or dredge area by 20 percent or more, relocates the proposed footprint of the permitted fill or dredge area, includes a prime wetland or surface waters of the state, includes a wetland of a different classification as classified by the department, or includes non-wetland areas requiring permits for filling and dredging. This meaning of “significant amendment” shall not apply to an application amendment that is in response to a request from the department.

RSA 483:4

VIII. “Designated river” means that portion of a perennial river which has been specifically designated by the general court pursuant to RSA 483:15.

XVIII. “River corridor” means the river and the land area located within a distance of 1,320 feet of the normal high water mark or to the landward extent of the 100 year floodplain as designated by the Federal Emergency Management Agency, whichever distance is larger.

RSA 483-B:4

XI-e. “Ordinary high water mark” means the line on the shore, running parallel to the main stem of the river, established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the immediate bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas. Where the ordinary high water mark is not easily discernable, the ordinary high water mark may be determined by the department of environmental services.

RSA 485-A:2

XIV. “Surface waters of the state” means perennial and seasonal streams, lakes, ponds, and tidal waters within the jurisdiction of the state, including all streams, lakes, or ponds bordering on the state, marshes, water courses, and other bodies of water, natural or artificial.

RSA 487:16

II. The term “exotic aquatic weeds” includes only those species of vascular aquatic plants which were not part of New Hampshire's native aquatic flora before 1950. Cabomba caroliniana and Myriophyllum heterophyllum are examples of exotic aquatic weeds.

RSA 672:6 Local Governing Body.

“Local governing body” means, in addition to any other appropriate title:

I. Board of selectmen in a town;

II. City council or board of aldermen in a city;

III. Village district commissioners in a village district; or

IV. County commissioners in a county in which there are located unincorporated towns or unorganized places.

40 CFR §230.3 Definitions.

(l) The term practicable means available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.

Appendix D: Other Statutory Provisions

[none in this chapter]

Appendix E: Summary of Abbreviations and Acronyms

Term

Meaning

Agriculture BMWPs

“Best Management Wetlands Practices for Agriculture” dated 2019, published by the NH Department of Agriculture, Markets, and Food

A/M BMPs

“Wetlands Best Management Practice Techniques For Avoidance and Minimization” dated 2019, published by the New England Interstate Water Pollution Control Commission

CPESC specialist

Certified Professional Erosion and Sediment Control specialist - an individual certified by EnviroCert International, Inc.® as competent to develop and implement erosion and sediment control practices

CY

Cubic Yard

Federal classification method

Method established in “Classification of Wetlands and Deepwater Habitats of the United States”, adapted from Cowardin, Carter, Golet and LaRoe (1979), August 2013, FGDC- STD-004-2013

Federal delineation method

Method established in “Wetlands Delineation Manual”, Technical Report Y-87-1, Corps of Engineers, January 1987, and “Regional Supplement to the Corps of Engineers Wetlands Delineation Manual: Northcentral and Northeast Region”, Version 2.0, U.S. Army Corps of Engineers, January 2012

Forestry BMPs

“New Hampshire Best Management Practices for Erosion Control on Timber Harvesting Operations” dated 2016, published by the University of New Hampshire Cooperative Extension

HOTL

Highest Observable Tide Line

Invasive Plant BMPs

“Best Management Practices For the Control of Invasive and Noxious Plant Species” dated 2018, published by the NHDOT

Marina BMPs

“Best Management Practices For New Hampshire Marinas” dated 2001, published by the NHDES Pollution Prevention Program

LAC

Local [River] Advisory Committee

LiDAR

Light Detection and Ranging - A surveying method that measures distance to a target by illuminating the target with pulsed laser light and measuring the reflected pulses with a sensor, with the differences in laser return times and wavelengths then being used to make digital 3-D representations of the target.

LF

Linear Foot

NH Method

“Method for Inventorying and Evaluating Freshwater Wetlands in New Hampshire” dated 2013 and revised 2015 and 2016, available at https://nhmethod.org/

NHB

Natural Heritage Bureau of the NH DNCR

NH DNCR

NH Department of Natural and Cultural Resources

NHF&G

NH Fish and Game Department

NHDOT

NH Department of Transportation

NRCS

Natural Resources Conservation Service of the U.S. Department of Agriculture

PBN

Permit-by-Notification (created in the rules)

PRA

Priority Resource Area - a jurisdictional area that:

(f) Is any combination of (a) through (e), above.

Professional engineer

RSA 310-A:2, II. “Professional engineer” means a person who by reason of advanced knowledge of mathematics and the physical sciences, acquired by professional education and practical experience, is technically and legally qualified to practice engineering, and who is licensed by the board or otherwise authorized by this subdivision to engage in the practice of engineering.

Routine Roadway BMPs

“Best Management Practices for Routine Roadway Maintenance Activities in New Hampshire” dated 2019, published by the NHDOT

SF

Square Foot

SPN

Statutory Permit-by-Notification (established in RSA 482-A)

Subject property

(b) For all other projects for which any kind of permit is required, the parcel(s) of land on which the project will occur or has occurred.

Trail BMPs

“New Hampshire Best Management Practices for Erosion Control During Trail Maintenance and Construction” dated 2017, published by the NH DNCR

US ACE

U.S. Army Corps of Engineers

USGS

United States Geological Survey

Utility BMPs

“Best Management Practices Manual, Utility Maintenance in and Adjacent to Wetlands and Waterbodies in New Hampshire” dated 2019, published by the NH DNCR

WAP

Wildlife Action Plan prepared and published by NHF&G

Water Quality BMPs

Recommended practices for minimizing or preventing the direct or indirect discharge of sediment or other pollutants into surface waters and wetlands, including those listed in Env-Wt 307 and the Agriculture BMPs, Forestry BMPs, Marina BMPs, Invasive Plant BMPs, Roadway Maintenance BMPs, Trail BMPs, and Utility BMPs, as applicable

WPPT

Wetlands Permit Planning Tool - a GIS tool that provides access to data for planning projects near or in jurisdictional areas, available at https://nhdeswppt.unh.edu/Html5Viewer/index.html?viewer=WPPT.gvh