What if virtually all minimum impacts could become "permits by notification"? And what if that permit by notification process could look more like the "permit by rule" process in Maine, where some of the forms just require a location, brief description, and photos of the site before the work? The applicant then waits a few days for the Department to check to see if the work is acceptable based upon existing maps of prime wetlands, rare species, tidal areas, etc. The applicant gets an approval by email that you can print out and show if anyone asks. Applicant does the work, sends in final pictures to the Department, and the permitting is complete. Straightforward and simple.
This approach is one of the things seriously being considered by the Department. All minimum impact projects would initially be considered "permits by notification", thereby reducing both the Department’s staff time and the applicant’s wait time. Most of these projects have such minimal environmental impact that it seems reasonable to have this rapid permitting process. The activities that will be allowed will have Best Management Practices (BMP) manuals to guide the applicants in the work, and, if not followed, will be the basis for a potential violation notice.
The Department is also considering a better definition of what constitutes a stream, with clear terminology and guidelines. Perhaps of even greater importance are definitions of what is not in the Department's jurisdiction, e.g. drainage swales, storm water detention basins, wash ponds, erosional features, ditches in uplands, and the like. Clear definitions will help the applicants, the wetland scientists, the Department's staff and the local town boards.
On the large wetland impact projects, we need to have an assessment process that is quick and easy to use so regulators can quickly determine if the wetland resource is significant or is of such low value that the impacts proposed are acceptable when an applicant has already designed a project using avoidance and minimization. Several rapid assessment methods are being consider by the Department.
And what is avoidance and minimization? The Department is developing a guidance BMP manual that demonstrates projects showing avoidance and minimization. Rather than guessing what is meant by avoidance and minimization of wetland impacts, the applicants can look at actual designs and layouts.
Then there are the state standards for delineating wetlands and water bodies, which are currently out of date and is also under consideration for change by the Department. In 2012, the Corps of Engineers published a regional manual for delineation of wetlands. In light of the manual, we need to have the new methods adopted into the Department’s rules in order to avoid the confusion as to what standards we are using flagging wetlands.
Parenthetically, it is also worthy of note that the rules currently do not take into consideration the EPA’s new rule on Waters of the United States and the definitions of what is regulated. Given the controversy the WOTUS rule has created, it may be a while before New Hampshire takes on any changes to make the rules congruent with the feds. Ultimately, this rule and its fallout will probably first be determined in a court room rather than a science-based workshop.
I believe the DES’s effort has the potential to make things better. Clean up the rules, make them easier to understand, give BMP guidance documents rather than hundreds of "thou shalt not" rules, define what is never in jurisdiction, get rid of the "twenty questions" now in the rules and adopt a meaningful assessment method, and make the small projects turn around faster. These are all good things, and I hope the effort by the Department works.
“In My View” is an opinion article that can be emailed to you once a month. It is my view of wetland and other environmental issues that will or may affect your business or organization. It will sometimes give you updates on new rules or legislation that has recently passed. In other cases, I will discuss legislation that is “in the works” at our state capital. As the name would imply, it is my view of what this rule, legislation or change means to you. I am constantly meeting with clients, friends and local regulatory officials who are asking me what this rule means or what that piece of legislation does. For that reason, I am sending this out to associates of GES who might care to have this information. I will not be political, but I do reserve the right to be opinionated.If you know of someone who might want to receive future articles, just send this on to them and copy us. We will add them to the distribution list. If in the coming months there is a topic, law, rule or regulation that you would like me to discuss, let us know. If I feel that I am competent to say something about it, I will discuss it in the future.
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