Timber Harvesting and Local Government
According to the University of New Hampshire Cooperative Extension, 84% of New Hampshire is forested, and of this forested acreage, 94% is classified as timberland. Timberland is defined as land that is producing or capable of producing crops of wood. Guide to New Hampshire Timber Harvesting Law.
This article will provide a synopsis of the laws governing timber harvesting, with a particular focus on taxation, land use and local roads.
New Hampshire imposes a yield tax at the time timber is cut at the rate of 10% of the stumpage value. RSA 79:3. The collected yield tax is paid over by the tax collector to the municipal treasurer, and that revenue can then be appropriated for general use of the city or town. RSA 79:13. In 2019 the total yield tax collected by New Hampshire municipalities equaled $3,689,436.
Notice of Intent to Cut Required
The owner of the property where the timber cutting is be undertaken must file a form PA-7, Notice of Intent to Cut, with the proper assessing officials (select board or board of assessors) stating the owner’s name, residence and an estimate of the volume of each species to be cut. An intent received by municipality shall, within 15 days, be assigned a number as prescribed by the Department of Revenue Administration (DRA), and be signed by the assessing officials. Instructions and forms can be obtained at the DRA website for Property-Timber.
Notwithstanding RSA 91-A, the assessing officials may sign the intent to cut outside a public meeting. When a notice is to be signed by the assessing officials outside a public meeting, public notice shall be posted by the municipality at least 24 hours, excluding Sundays and holidays, before it is signed. The notice shall be posted in the 2 places where the municipality regularly posts notices of its governing body meetings.
Local officials may decline to sign an Intent to Cut for only the following reasons.
- Form being improperly filled out RSA 79:10.
- Land is enrolled in the unproductive current use category that does not allow timber harvesting RSA 79-
A:2, XIII & Cub 305.02,(b).
- A timber tax bond is required but has not been posted
RSA 79:1, II, (a), (2), RSA 79:3-a & RSA 79:10-a.
- All owners of record have not signed the Intent to Cut
RSA 79:1, II & 79:10, I, (a).
Planning Boards Can Only Regulate Timber Operations
Local officials cannot refuse to sign a Notice of Intent to Cut because the owner needs to be issued a special permit to engage in forestry and tree farming within areas protected by a municipal wetlands conservation ordinance. In a Superior Court decision Nancy J. Bottom, Trustee v. Town of Hampton, Rockingham Superior Court, Case # 218-2014-CV-00688 (August 12, 2014) the court ruled that RSA 674:1, VI deprived the planning board of the authority to enforce a requirement that a local permit be issued for timber harvesting activities in a wetlands conservation district. Relying on both RSA 674:21, IV and RSA RSA 672:1, III-c, the court concluded that when the Legislature enacted SB 104 in 2011 it intended to remove regulation of timber harvesting from municipal control because forestry activity is already highly regulation at the state level. Under RSA 674:1, VI the planning board can only regulate timber harvesting operations where the proposed timber cutting is part of a subdivision or site plan application.
The environmental protection rules that do govern a timber harvesting operation are found in RSA chapter 227-J. Under RSA 227-J:6 a timber harvest must comply with wetland protection statutes found in RSA chapter 482-A, and where required secure a permit from the Department of Environmental Services. RSA 227-J:7 provides that a timber harvest may also need to get an Alteration of Terrain Permit under RSA 485-A:17. However, a timber harvesting operation is granted a “permit by rule” if the harvesting is in accordance with procedures prescribed in the Best Management Practices for Erosion Control on Timber Harvesting Operations in New Hampshire, and provided the intent to cut form is signed.
The basal area law, RSA 227-J:9, requires that forested buffers be left along town and state roads, streams, and bodies of water, following a timber harvest. Simply stated, basal area is a measure of tree density on each acre of land. The higher the basal area, the denser the forest.
The law says that no more than 50 percent of the basal area may be cut or otherwise felled each year, leaving a well distributed stand of healthy, growing trees, within 150 feet of:
(1) Any great pond;
(2) Any standing body of water 10 acres or more in area;
(3) Any fourth order or higher stream; or
(4) Any public highway, except class VI highways, as defined in RSA 229:5, VII; or
This law would help protect Class IV and Class V highways from excessive erosion due to a substantial removal of timber on abutting property but would not protect Class VI highways.
Temporary Driveway Permit May be Issued
Using the authority provided under RSA 236:13, municipalities can require a temporary driveway permit for a logging operation. That driveway permit could ensure safe sight distance and temporary signage warning of trucks entering and exiting. The permit could also require installation of an apron at the driveway to protect the adjacent road surface.
As a condition of issuing the driveway permit a bond may be required to ensure any damage to the adjacent road is repaired due to operations over a temporary driveway, or due to an operation being granted an exception to any applicable road weight limit, due to difficulty or hardship. The bond requirements must be equitably and reasonably applied to other bonded vehicles using the highway. The type of commodity being transported “shall not” be the determining factor for requiring a bond or for the dollar amount of the bond. RSA 236:10. The person or entity providing the bond shall determine the type of bond furnished, and it may be in the form of cash, letter of credit acceptable to the municipality, or a bond.
It is recommended municipalities provide notice to those who submit a Notice of Intent to Cut that where there is no existing driveway giving access to a Class IV or Class V, that a new driveway permit would be required, or, a modified driveway permit where the change in the use of the driveway for timber hauling necessitates a modification of the permit conditions. Even if an existing driveway had not been permitted by the municipality, under RSA 236:13,VI the municipality can require driveway improvements to eliminate any potential threat to the integrity of the local highway that might be caused by a timber harvesting operation due to “siltation, flooding, erosion, frost action, vegetative growth, improper grade, or the failure of any culvert, traffic control device, drainage structure, or any other feature.”
Stephen C. Buckley is Legal Services Counsel with the New Hampshire Municipal Association. He may be contacted at 603.224.7447 or at firstname.lastname@example.org.