Protecting New Hampshire’s Wetlands: Municipal Issues

By Susan Slack, Esq.

Q. What are wetlands?

A. In 2004 the state legislature officially defined the term “wetlands," which is found at RSA 482-A:2, X. The definition is:

“Wetlands" means an area that is inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal conditions does support, a prevalence of vegetation typically adapted for life in saturated soil conditions.

Q. How does the state definition affect municipal ordinances and regulations?

A. In addition to establishing a wetlands definition, in 2004 the legislature also enacted RSA 674:55, which declares that whenever “wetlands" or “wetland" appears in local zoning ordinances or planning regulations, it has the meaning established in RSA 482-A:2, X. However, RSA 674:55 does not limit the authority of municipalities to enact land use regulations based on “environmental characteristics, vegetation, wildlife habitat, open space, drainage, potential for flooding and protection of natural resources, including critical or sensitive areas or resources and groundwater." If the municipal regulation includes the term “wetlands," its meaning is governed by RSA 482-A:2, X; but if the municipal regulation uses other terms, such as hydric (poorly drained and very poorly drained) soils, the meaning is governed by the local ordinance or regulation. Planning board members should review current zoning ordinances and planning regulations to determine if the state wetlands definition is appropriate where the ordinance includes the term “wetlands." If not, the ordinance or regulation could be amended using terms other than “wetlands."

Q. Do municipalities and the state interact in other ways on wetlands issues?

A. Municipal officials can opt to participate in certain dredge and fill application decisions made by the Department of Environmental Services under the provisions of RSA 482-A. In addition, municipalities can map their prime wetlands, which, if adopted by the legislative body, requires DES to deny any dredge and fill permit affecting a mapped prime wetland unless “clear and convincing" evidence exists to determine that the proposed development activity will not result in “the significant net loss" of the prime wetland's values. Also, DES wetlands regulations require developers in certain circumstances to mitigate destruction of wetlands caused by the development by preserving other wetlands within the same watershed. As a result, municipalities and/or their conservation commissions may be asked by developers to hold conservation easements on property containing these preserved wetlands.

Q. What is the municipality's role in the DES decision to grant or deny dredge and fill permits?

A. RSA 482-A:3 requires anyone who wishes to “excavate, remove, fill, dredge or construct any structures in or on any bank, flat, marsh, or swamp in and adjacent to any waters of the state" to obtain a permit from DES. The applicant must file the permit application, along with the appropriate fee, with the town or city clerk, who must immediately forward a copy to DES, as well as to the municipal governing body, planning board and conservation commission. Under the provisions of RSA 482-A:11, III(a), a municipal conservation commission can investigate any application for a dredge and fill permit for which it has received notice. The conservation commission must provide written notice to DES within 14 days following the date the application is filed with the town or city clerk that it intends to investigate and, upon receipt of such notice, DES must suspend action on the application until it receives a written report from the conservation commission. However, the conservation commission's report must reach DES within 40 days from the date the application was filed with the town or city clerk. DES must consider the conservation commission's report and it must make written findings on each issue on which it disagrees with the conservation commission's recommendations.

Q. What are prime wetlands?

A. Prime wetlands are defined in RSA 482-A:15 as “any areas falling within the jurisdictional definitions of RSA 482-A:3 and RSA 482-A:4 that possess one or more of the values set forth in RSA 482-A:1 and that, because of their size, unspoiled character, fragile condition or other relevant factors, make them of substantial significance." The jurisdictional definitions referred to include any “bank, flat, marsh or swamp in and adjacent to any waters of the state," as provided in RSA 482-A:3, I. Certain exemptions are provided in the statute, such as the repair or replacement of existing structures; nontidal drainage ditches, culverts and the like where wetlands vegetation has not become dominant; and temporary seasonal docks. Also certain minimum impact timber harvesting and recreation trail construction and maintenance activities are deemed to have satisfied the permitting requirements as long as proper notices have been filed. The wetland values referred to in RSA 482-A:1 include plant, fish and wildlife habitat; commerce, recreation and aesthetic enjoyment; adequate groundwater levels; the handling of runoff by stream channels; and flood and silt absorption.

Q. How does a municipality establish prime wetlands?

A. The conservation commission maps and designates the prime wetlands lying within, or the portions of such wetlands lying partly within, the municipality's boundaries in accordance with DES administrative rules. Once the prime wetlands are mapped and delineated, they must be approved by a vote of the municipality's legislative body (town meeting or town/city council) according to the provisions of RSA 675:2 or RSA 675:3. Once the municipality approves prime wetlands designation, the maps and designations must be filed with DES. Dredge and fill permit applications received by DES after the filing of the maps cannot be approved without a finding by clear and convincing evidence that the proposed development activity will not result in “the significant net loss" of prime wetland values. Also, DES must notify the municipal governing body, planning board and conservation commission before granting and dredge and fill permit applications affecting prime wetlands.

Q. When does DES require wetlands mitigation?

A. Applicants are required to provide evidence to DES that potential impacts to wetlands have been avoided as much as possible and that unavoidable impacts have been minimized. When an application includes any proposed permanent impacts to wetlands, after avoidance and minimization, it must include a compensatory mitigation proposal, unless certain exemptions outlined in DES administrative rule Wt 302.03(c) apply. Generally, exempt projects are those that qualify as minimum impact projects or are less than 10,000 square feet of wetlands. Compensatory mitigation proposals must comply with the requirements of the DES Wt 800 rules.

Q. What is compensatory mitigation?

A. DES administrative rule Wt 101.17 defines compensatory mitigation as the “creation of a new wetland, restoration of a wetland, or preservation of land to offset the impact of a project by replacing or partially replacing wetlands functions and values lost due to the project, or by substituting the value added to a wetland or wetland system for the functions or values lost." Wt 101.69 defines “preservation" as “the permanent protection of wetland and upland areas using legal and physical mechanisms so that the resource remains in a natural or undeveloped condition." The compensatory mitigation site must be located within the same watershed as the wetlands affected by the proposed development “when available and practicable." The size of the compensatory mitigation site is determined by the size of the affected wetland according to a ratio chart found in Wt 803.05. DES may accept alternative compensatory mitigation plans when they provide greater benefit to water quality, wildlife habitat or other wetland and surface water values, according to Wt 803.06. Criteria for upland buffer preservation are found in Wt 804.

Q. When does the municipality become involved in compensatory mitigation projects?

A. When DES requires applicants to provide compensatory wetlands mitigation by preserving a wetland or upland buffer, the municipality or its conservation commission may be asked to hold a conservation easement on the property providing the mitigation. Conservation easements are interests in real estate conveyed by deed according to the requirements of RSA 477:45 through 47. The holder of a conservation easement or restriction has the right to prohibit the owner of the property from developing it in a manner that affects the natural resources of the property according to the terms of the easement deed. These conservation easements are often donated to the municipality by the developers of the affected wetlands. Acceptance of such gifts is not required and may obligate the municipality to enforcement of the easement terms in perpetuity. Acceptance of conservation easements by the conservation commission must comply with the provisions of RSA 36-A:4. This discussion pertains to DES wetlands mitigation requirements, but development projects occasionally come under federal Clean Water Act mitigation requirements administered by the U.S. Army Corps of Engineers.