In My View - December 2018 END OF A LONG YEAR

In My View   December 2018 END OF A LONG YEAR 

It has been a year-long effort, but the final hearings of the proposed wetland rules have come to an end. There is much to like in the new rules. The smaller projects will be handled much more quickly.  The permit by notifications have been greatly expanded. They now include both commercial and residential access, stream crossings, coastal projects, and bank impacts. The new rules consolidate shoreland and wetland permits along the lakefronts and coastal areas, which will reduce the need for two permits for the same project. If one is doing a minimum impact project, the new rules will allow the permit to be issued in 5 to 10 days from the time it is received by the Department of Environmental Services. Speedy! How can that be? 

One of the things that happened in the last legislative session is that the Department can issue minimum impact permits without input from the Conservation Commissions. Of course, the Conservation Commissions were not thrilled with being cut from the train of permitting on small projects. Unintended fall-out might be more Conservation Commissions requiring local conditional use permits for small wetland impact projects, thus going around the intent of the Department to provide speedy permitting of minimally impacting wetland projects. I might suggest to applicants that use the new minimum impact permitting process (once the rules are adopted), to meet with the Conservation Commission prior to submitting the application, even if not required to. Their input can be referenced in the application, even if it is negative in some way. At least a local response has been obtained. This will cut down of appeals and objections. 

Since the majority of projects reviewed by the Department are minimal wetland impacts, then the majority of applicants will be happy with the new rules. 

Another interesting development coming out of the new rules is an enhanced data screening process. While I have not yet had the opportunity to evaluate the new data screening tools, apparently important resources will be shown in the GIS links. While the resources being shown are not on-the-ground observations or delineations, the screening will give the applicant a heads-up on possible sensitive ecosystems within the project area. I am looking forward to seeing how it works. 

How about the projects larger than minimum? Here I am not so clear on what will happen. Embedded in the rules under avoidance and minimization is the question that all applicants have to deal with. Do I need the wetland impacts? The New Hampshire Supreme Court basically defined need, in the context of wetland permitting, as the dictionary definition of need: a want, a necessity, a demand, etc. You get the idea. And the current rules do not have a good definition of “need”. The proposed rules do not use the term “need”. Rather, the term “avoidance and minimization” is defined. 

I believe there will be a paradigm shift in the approach to wetland application review for projects that are minor and major. The applicant will have to explain the “need” for the project in much greater detail. It will not be sufficient to just say, “I need more parking” or “I need a larger building” or “the project is not viable without filling of that wetland”. So, even if the term “need” is not used in any of the new rules, the applicant will have to supply significant justification for the proposed impacts.  

I believe there will also be an increased cost to prepare the plans and the details for projects that are minor or major. Every wetland flag (including the flag number) will need to be shown on the existing and proposed conditions plans. No more dotted-dashed lines showing the wetland boundaries. Individual flag numbers will need to be shown (opps, there is no flag A-23. I just went from A-21 to A-24 because I forgot which flag I was on!). Every little mistake in flag numbering is there for all to see! 

Every wetland will need to be assessed using a functional assessment technique. While the one being suggested in the new rules is not particularly sophisticated or difficult, it does add both field time and office time. And the functional assessment of the individual wetlands will drive the design of which wetlands might be impacted, and those which would be required to avoid.  

How do I answer this question? “Fine, you have functionally assessed. So tell me, which ones can I ‘nuke’?” My response, which will not be received well, will be: “Which ones must you ‘nuke’? And prove it!” Such discussions occur now. But let’s toss in another element that goes into effect in January. Permitting times for minor and major projects go from 75 days to 50 days. Less time for negotiations. More likely that applications will be denied? Stay tuned. 

How much increased cost? Until we do the actual work, we can’t be sure. Maybe 50% more cost to the applicant, or maybe the costs will double. I don’t have a good sense yet. 

Given what I believe will be a paradigm shift in the way applications are prepared and reviewed, what are the chances that there will be more appeals? Will the opposing abutter be more likely to appeal if the criteria for avoidance and minimization are not clearly followed? Or if the avoidance and minimization analysis has a built-in bias for the project, which of course it will have. One would hardly prepare design plans, then state that they shouldn’t be approved because they impact too many valuable wetland resources! Going to be some interesting growing pains, I predict. 

You know, wetland delineation is pretty straight forward: you must have hydric soils, you must have a dominance of wetland vegetation, and you must have wetland hydrology. Maybe a few feet one way or the other, especially in disturbed areas. But for the most part, pretty much the same delineation will occur, regardless of the wetland scientist. 

But, impact assessment is another story! How much is too much? How much impact can I get away with? You can be unbiased in the wetland delineation and in the functional assessment, but how can you be unbiased in the avoidance and minimization analysis?  

Many years ago, I was at a wetland conference where various functional assessments and wetland values were being discussed. In the middle of all this discussion of flood storage, versus wildlife habitat versus water-quality renovation, an old guy stood up to speak. He said: “Wetlands are like babies. They are all different, but they are all valuable. All wetlands are important. All wetlands should be protected.” He sat down to silence. 

Scientifically, I could argue that he was absolutely wrong. Some wetlands are so marginal that they hardly differ from the surrounding uplands.  

But he was speaking culturally. Was he biased against all wetland impacts? Of course! But is the wetland applicant biased against all wetland preservation? Of course!  

If you are waiting for me to give you some magic message, potion of objectivity, or formula that will give you the answer, well, forget it! At the end of this year, I am just offering the question.

Can we ever evaluate wetland impacts in an unbiased way? 

In My View” is an opinion article that will be posted 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 do not wish to receive further articles, let us know by a “reply to”, and we will delete your name. 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.

That concludes this Months article. Each past article will be stored on our website at HYPERLINK "https://www.gesinc.biz" www.gesinc.biz or Google: Gove Environmental Services, Inc. I hope this will be of value to you.

Jim Gove 

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