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NHDES’s New Wetlands Rules

Nicole Manteau Sept. 25, 2018

By: Jason D. Reimers, Esq.

NHDES is the State of New Hampshire’s Department of Environmental Services.   NHDES regulates air pollution, alteration of terrain, waste management, drinking water, dams, shorelands, wetlands, and other environmental matters.  NHDES’s enforcement (or lack thereof) of New Hampshire’s environmental statutes and administrative rules is a perennial source of disagreement and frustration depending which side you are on in any particular matter.  I have clients who are seeking permits from NHDES, and I have clients who are opposed to permit applications that others have filed with NHDES.  I have clients who want NHDES to investigate apparent violations of statutes and rules, and I have clients who are the subjects of such investigations and allegations.

This article is focused on NHDES’s regulation of wetlands and, specifically, NHDES’s current efforts at overhauling its wetlands administrative rules.  In 1989, the New Hampshire legislature enacted a wetlands protection statute that has since been amended several times.  The wetlands protection statute is contained in our State law as RSA 482-A, which you can easily find by searching “RSA 482-A” online or by going directly to the NHDES website.  RSA 482-A requires NHDES to adopt administrative rules to flesh out the details of the statute.  Both the statute and the administrative rules are law.  NHDES is currently in the process of heavily revising the current version of the wetlands rules.

The Wetlands Bureau at NHDES receives approximately 2,000 applications every year.  Many of these applications are for harvesting timber, installing driveways, maintaining and installing culverts, constructing new hiking trails, installing docks on lakes and rivers, and developing or expanding residential and commercial projects.  As you can see, many different people with many different goals go through the NHDES permitting process related to wetlands.

According to NHDES, its overall goal of permitting and enforcement is to strike a balance between protecting natural resources and supporting economic activity.  With the revision of its wetlands rules, NHDES says that its goals are to consolidate and clarify permit requirements and to shorten time frames for NHDES to approve or deny an application.  Applicants for permits are hopeful that the overhaul of the rules will standardize the permitting process and lessen the likelihood that the approval or disapproval of an application will depend on uncontrollable factors at NHDES, such as who is reviewing the application.

Under RSA 482-A, the range of activities in wetlands subject to NHDES oversight fall into different levels of review ranging from hardly any review at all to full review of a standard wetlands application.  NHDES’s rulemaking revisions seek to clarify exactly which activities require what level of review, with a goal of reducing the level of review required for particular types of projects where permissible by the statute.

I have seen a working version of the revised rules.  The revised rules include changes to the requirement that a municipal conservation commission review certain types of projects, major changes for docks, and changes in abutter setbacks.

NHDES will be seeking public comment on the revised rules.  If you are on a conservation commission, involved with a land trust, are thinking of developing a residence or a commercial property, might want a dock (or might not want your neighbor to have a dock close to your property), or otherwise appreciate the importance of wetlands, get in touch with NHDES and voice your opinion.  The proposed revised rules are available on the NHDES website at https://www.des.nh.gov/organization/divisions/water/wetlands/process-improvement.htm.

In addition to being an owner at BCM, Jason is vice-chair of the New Hampshire Bar Association’s Ethics Committee and lives in Peterborough.

This article was originally published in The Monadnock Ledger-Transcript.