Section 482-A:3 Excavating and Dredging Permit; Certain Exemptions.
[Paragraph I effective until July 1, 2010; see also paragraph I set out below.]
I. (a) No person shall 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 without a permit from the department. The permit application together with a detailed plan and a map showing the exact location of the proposed project, along with 4 copies of the permit application, plan and map, shall be submitted to the town or city clerk, accompanied by a filing fee in the form of a check made out by the applicant to the state of New Hampshire.
(b) The permit application fee for minor and major shoreline structure projects shall be $200 plus an impact fee, based on the area of dredge, fill, or dock surface area proposed, or a combination. The shoreline structure impact fee shall be $2 per square foot for permanent dock surface area; $1 per square foot for seasonal dock surface area; and $.20 per square foot for dredge or fill surface area or both. For projects involving only the repair, reconstruction, or reconfiguration of an existing docking structure, the application fee shall be $200.
(c) The permit application fee shall be $200 for minimum impact dredge and fill projects under this chapter. The permit application fee shall be $.20 per square foot of proposed impact for all minor and major impact dredge and fill projects under this chapter and there shall be a minimum fee of $200 for all such projects that impact fewer than 1,000 square feet.
(d) At the time the permit application is submitted to the city or town clerk, the applicant shall:
(1) Provide postal receipts or copies, verifying that abutters, as defined in the rules of the department, and except as further provided in said rules, have been notified by certified mail. A postal receipt or copy that verifies submittal of the permit application to the local river management advisory committee, if required under subparagraph (2), shall also be provided. The postal receipts or copies shall be retained by the municipality. The town or city clerk shall immediately sign the application and forward, by certified mail, the application, plan, map, and filing fee to the department. The town or city clerk shall then immediately send a copy of the permit application, plan, and map to the local governing body, the municipal planning board, if any, and the municipal conservation commission, if any, and may require an administrative fee not to exceed $10 plus the cost of postage by certified mail. One copy shall remain with the city or town clerk, and shall be made reasonably accessible to the public. The foregoing procedure notwithstanding, applications and fees for projects by agencies of the state may be filed directly with the department, with 4 copies of the application, plan, and map filed at the same time with the town or city clerk to be distributed as set forth above.
(2) Submit a copy of the permit application to the local river management advisory committee if the project is within a river corridor as defined in RSA 483:4, XVIII, or a river segment designated in RSA 483:15. The local river management advisory committee shall, under RSA 483:8-a, III(a)-(b), advise the commissioner and consider and comment on the permit application.
(e) Beginning October 1, 2007, and each quarter of the fiscal year thereafter, the department shall submit a quarterly report to the house and senate finance committees, the house resources, recreation, and economic development committee, and the senate energy, environment, and economic development committee relative to administration of the wetlands fees permit process established by this section.
[Paragraph I effective July 1, 2010; see also paragraph I set out above.]
I. (a) No person shall 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 without a permit from the department. The permit application together with a detailed plan and a map showing the exact location of the proposed project, along with 4 copies of the permit application, plan and map, shall be submitted to the town or city clerk, accompanied by a filing fee in the form of a check made out by the applicant to the state of New Hampshire.
(b) The permit application fee for minor and major shoreline structure projects shall be $200 plus an impact fee, based on the area of dredge, fill, or dock surface area proposed, or a combination. The shoreline structure impact fee shall be $2 per square foot for permanent dock surface area; $1 per square foot for seasonal dock surface area; and $.20 per square foot for dredge or fill surface area or both. For projects involving only the repair, reconstruction, or reconfiguration of an existing docking structure, the application fee shall be $200.
(c) The permit application fee shall be $200 for minimum impact dredge and fill projects under this chapter. The permit application fee shall be $. 20 per square foot of proposed impact for all minor and major impact dredge and fill projects under this chapter and there shall be a minimum fee of $200 for all such projects that impact fewer than 1,000 square feet.
(d) At the time the permit application is submitted to the city or town clerk, the applicant shall:
(1) Provide postal receipts or copies, verifying that abutters, as defined in the rules of the department, and except as further provided in said rules, have been notified by certified mail. A postal receipt or copy that verifies submittal of the permit application to the local river management advisory committee, if required under subparagraph (2), shall also be provided. The postal receipts or copies shall be retained by the municipality. The town or city clerk shall immediately sign the application and forward, by certified mail, the application, plan, map, and filing fee to the department. The town or city clerk shall then immediately send a copy of the permit application, plan, and map to the local governing body, the municipal planning board, if any, and the municipal conservation commission, if any, and may require an administrative fee not to exceed $10 plus the cost of postage by certified mail. One copy shall remain with the city or town clerk, and shall be made reasonably accessible to the public. The foregoing procedure notwithstanding, applications and fees for projects by agencies of the state may be filed directly with the department, with 4 copies of the application, plan, and map filed at the same time with the town or city clerk to be distributed as set forth above.
(2) Submit a copy of the permit application to the local river management advisory committee if the project is within a river corridor as defined in RSA 483:4, XVIII, or a river segment designated in RSA 483:15. The local river management advisory committee shall, under RSA 483:8-a, III(a)-(b), advise the commissioner and consider and comment on the permit application.
(e) Beginning October 1, 2007, and each quarter of the fiscal year thereafter, the department shall submit a quarterly report to the house and senate finance committees, the house resources, recreation, and economic development committee, and the senate energy, environment, and economic development committee relative to administration of the wetlands fees permit process established by the section.
I-a. In reviewing requests proposed, sponsored, or administered by the department of transportation, there shall be a rebuttable presumption that there is a public need for the requested project, and that the department of transportation has exercised appropriate engineering judgment in the project's design.
II. (a) The department shall submit to the governor and council all requests for permits approved by the department which meet the definition of major projects located in great ponds or public-owned water bodies under the rules of the department which have been approved by the department.
(b) The governor and council shall consider the request for permit transmitted by the department. The governor and council may approve as transmitted or deny the submitted request. Following action by the governor and council the requests shall be returned to the department for permitting, if approved, or filing, if denied.
[Paragraph III effective until July 1, 2011; see also paragraph III set out below.]
III. The filing fees collected pursuant to paragraphs I, V(c), XI(h), and XII(c) and RSA 483-B:5-b are continually appropriated to and shall be expended by the department for paying per diem and expenses of the public members of the council, hiring additional staff, reviewing applications and activities relative to the wetlands of the state and protected shorelands under RSA 483-B, conducting field investigations, and holding public hearings. Such fees shall be held by the treasurer in a nonlapsing fund identified as the wetlands and shorelands review fund.
[Paragraph III effective July 1, 2011; see also paragraph III set out above.]
III. The filing fees collected pursuant to paragraphs I, V(c), XI(h), and XII(c) are continually appropriated to and shall be expended by the department for paying per diem and expenses of the public members of the council, hiring additional staff, reviewing applications and activities relative to the wetlands of the state and protected shorelands under RSA 483-B, conducting field investigations, and holding public hearings. Such fees shall be held by the treasurer in a nonlapsing fund identified as the wetlands and shorelands review fund.
IV. (a) The replacement or repair of existing structures in or adjacent to any waters of the state which does not involve excavation, removal, filling, or dredging in any waters or of any bank, flat, marsh, or swamp is exempt from the provisions of this chapter.
(b) Man-made nontidal drainage ditches, culverts, catch basins, and ponds that have been legally constructed to collect or convey storm water and spring run-off, fire ponds and intake areas of dry hydrants that have been legally constructed to provide water for municipal firefighting purposes as approved by a local fire chief, and man-made water conveyance systems that are used for the commercial or industrial purpose of collecting, conveying, storing, and recycling water, may be cleaned out when necessary to preserve their usefulness without a permit from the department. Such drainage facilities, fire ponds, intake areas of any hydrants, or man-made water conveyance systems may be cleaned out by hand or machine; provided, that the facility is neither enlarged nor extended into any area of wetlands jurisdiction of the department of environmental services, dredged spoils are deposited in areas outside wetlands jurisdiction of the department of environmental services, and wetlands or surface waters outside the limits of the constructed drainage facility, fire pond, intake area of a dry hydrant, or man-made water conveyance system are neither disturbed nor degraded.
IV-a. Temporary seasonal docks installed on any lake or pond shall be exempt from the permitting requirements of this section, provided that a notification is sent to the department by the owner of property that includes the name and address of the property owner, the municipality, the waterbody, and tax map and lot number on which the proposed dock will be located. To qualify for an exemption under this paragraph, a temporary seasonal dock shall be:
(a) The only docking structure on the frontage;
(b) Constructed to be removed during the non-boating season;
(c) Removed from the lake bed for a minimum of 5 months of each year;
(d) Configured to be narrow, rectangular, and erected perpendicular to the shoreline;
(e) No more than 6 feet wide and no more than 40 feet long if the water body is 1,000 acres or larger, or no more than 30 feet long if the water body is less than 1,000 acres;
(f) Located on a parcel of land that has 75 feet or more of shoreline frontage;
(g) Located at least 20 feet from an abutting property line or the imaginary extension of the property line over the water;
(h) Installed in a manner which requires no modification, regrading, or recontouring of the shoreline, such as installation of a concrete pad for construction of a hinged dock;
(i) Installed in a manner which complies with RSA 483-B; and
(j) Installed in a location that is not in, or adjacent to, an area that has been designated as a prime wetland in accordance with RSA 482-A:15.
V. (a) Persons who have complied with notice of intent to cut wood requirements under RSA 79:10, and who have filed an appropriate notice of intent with the department and the department of resources and economic development, shall have satisfied the permitting requirements of this section for minimum impact activities only as defined by rules adopted by the commissioner. Minimum impact notifications issued by the department shall be valid for 2 years.
(b) Appropriate notice to the department and the department of resources and economic development shall include the following information:
(1) Name and address of property owner;
(2) Name and address of logger or forester;
(3) Town, tax map, number and lot number of job site; and
(4) A copy of the appropriate United States Geological Survey topographic map, or a copy of the appropriate United States Natural Resources Conservation Service soils map, with the type and location of all wetland and waterbody crossings clearly indicated.
(c) A $25 filing fee shall accompany the notice to the department. Such fees shall be held in accordance with paragraph III.
(d) The filing of an intent to cut form under RSA 79:10 shall be considered as permission to the department or the department of resources and economic development, or their agents, to enter the property for determining compliance with this chapter.
(e) The certificate issued under RSA 79:10 shall be posted upon receipt. Prior to receipt of such certificate, a copy of the intent to cut form, signed by the appropriate municipal official, shall be available on the job site, and shall be shown to any person who asks to see it.
VI. The permittee shall record, in the registry of deeds for the county or counties in which the real estate is located, each permit granted under this chapter for the installation, construction, or repair of a dock, docking facility, or marina, or for alteration of wetlands associated with a subdivision of 4 or more lots. The permit shall not be effective until so recorded.
VII. No person shall destroy, raze, deface, reduce, alter, build upon or remove any sand or vegetation from any sand dune in this state without a permit from the department; provided, however, that any person may remove sand which blows or drifts onto any lawn, driveway, walkway, parking or storage area, or boat ramp, or which blows or drifts in, on, or around buildings or other structures owned by the person. Upon request of the property owner, the department shall provide a preapplication assessment of any lot of record located in sand dunes.
VIII. Except as set forth in paragraph IX, no person shall operate or ride any mechanized or off highway recreational vehicle on any sand dune in the state of New Hampshire.
IX. This section shall not apply to:
(a) Police vehicles or fire vehicles.
(b) Vehicles used in cases of emergency.
(c) Authorized maintenance vehicles when performing maintenance duties.
(d) Vehicles used by commercial fishermen or commercial lobstermen when engaged in activities related to fishing or lobstering.
X. (a) The maximum cash application fee for the New Hampshire department of transportation shall be $10,000 per application plus provisions for technical or consulting services or a combination of such services as necessary to meet the needs of the department. The department may enter into a memorandum of agreement with the New Hampshire department of transportation to accept equivalent technical or consulting services or a combination of such services in lieu of a portion of their standard application fees.
(b) For tidal dredging projects with the primary purpose to improve navigation for a municipality, the maximum application fee for a municipality shall be $10,000 per application plus provisions for technical or consulting services or a combination of such services as necessary to meet the needs of the department. The department may enter into a memorandum of agreement with a municipality to accept equivalent technical or consulting services or a combination of such services in lieu of a portion of their standard application fees.
XI. (a) Small motor mineral dredging shall be limited to activities which are classified as minimum impact under rules adopted by the commissioner under RSA 482-A:11 and which do not exceed the following limits:
(1) Power equipment shall be limited to 5 horsepower.
(2) Suction dredges shall be limited to a single 4-inch diameter intake nozzle.
(3) Sluice and rocker boxes shall be limited to 10 square feet.
(b) Any person who wishes to engage in small motor mineral dredging shall obtain a permit from the department. A permit application shall be filed directly with the department, and the procedural requirements of RSA 482-A:3, I and RSA 482-A:11, III shall not apply. Any permit issued by the department under this paragraph shall expire at the end of the calendar year in which it is issued. Any person who engages in panning only shall not be required to obtain a permit but shall be subject to rules of the department. Panning shall include those activities associated with the manual search for minerals in a river bed without the use of motorized equipment.
(c) Any person wishing to engage in mineral dredging which in any way exceeds the limits of small motor mineral dredging shall first obtain, in addition to a wetlands permit, a mining permit from the department of resources and economic development pursuant to RSA 12-E.
(d) The commissioner shall adopt rules, under RSA 541-A, relative to:
(1) Small motor mineral dredging and panning.
(2) The issuance of statewide small motor mineral dredging permits.
(3) Any other matters relative to small motor mineral dredging and panning.
(e) The state shall retain the right to prohibit panning and mineral dredging activity at certain times or in certain locations when such activity would be detrimental to the public interest for reasons including, but not limited to, environmental and wildlife protection.
(f) Any person who has obtained a small motor mineral dredging permit from the department pursuant to this paragraph, or any person who intends to engage in any panning activity shall, prior to engaging in any small motor mineral dredging or panning activity, obtain the written permission to engage in such activity from the riverbed landowner on whose property the activity is to be conducted.
(g) The department may enter into a cooperative agreement with the fish and game department relative to enforcement of the provisions of this paragraph.
(h) Application fees shall be $25 for residents of the state of New Hampshire and $50 for out-of-state applicants. Fees shall be collected by the department and held in accordance with paragraph III.
XII. (a) Persons who construct and maintain recreational trails in accordance with the Best Management Practices for Erosion Control During Trail Maintenance and Construction published by the department of resources and economic development and who have filed an appropriate notice, as described in subparagraph (b), to construct or maintain such trails with the department and the department of resources and economic development shall have satisfied the permitting requirements of this section for minimum impact activities, as defined by rules adopted by the commissioner.
(b) Appropriate notice to the department and the department of resources and economic development shall include the following information:
(1) Name and address of organization constructing or maintaining the recreational trail.
(2) Name and address of property owner.
(3) Town, tax map number, and lot number of property.
(4) A copy of the appropriate United States Geological Survey topographic map with the type and location of all wetland and waterbody crossings clearly indicated.
(c) A $25 filing fee shall accompany the notice to the department. Such fees shall be held in accordance with paragraph III.
XIII. (a) All boat docking facilities shall be at least 20 feet from an abutting property line in non-tidal waters, and at least 20 feet in tidal waters.
(b) Boat docking facilities may be perpendicular or parallel to the shoreline or extend at some other angle into a water body, depending on the needs of the landowners, factors related to safe navigation, and the difficulty of construction. However, any boat secured to such a dock shall not extend beyond the extension of the abutter's property line.
(c) Notwithstanding the provisions of subparagraph (a), boat docking facilities may be located closer than 20 feet from an abutter's property line in non-tidal waters and 20 feet in tidal waters, if the owner of the boat docking facility obtains the written consent of the abutting property owner. Such consent shall be signed by all parties, notarized and filed with the dock application with the department of environmental services.
(d) Abutters may apply for a common dock on or near their common property line. Any application for a common dock shall be accompanied by a notarized written agreement which shall be signed by all property owners. Such agreement shall be filed at the registry of deeds and attached to the deed of each property owner.
XIV. (a) In processing an application for permits under this chapter, except for a permit by notification, the department shall:
(1) Within 14 days of receipt by the department, issue a notice of administrative completeness or send notice to the applicant, at the address provided on the application, identifying any additional information required to make the application administratively complete and providing the applicant with the name and telephone number of the department employee to whom all correspondence shall be directed by the designated department employee regarding incompleteness of the application. Each receipt of additional information in response to any notice shall re-commence the 14-day period until the department issues a notice of administrative completeness. Any notice of incompleteness sent under this subparagraph shall specify that the applicant or authorized agent shall submit such information as soon as practicable and shall notify the applicant or authorized agent that if the requested information is not received within 60 days of the notice, the department shall deny the application.
(2) Within 75 days of the issuance of a notice of administrative completeness for projects where the applicant proposes under one acre of jurisdictional impact and 105 days for all other projects, request any additional information that the department is permitted by law to require to complete its evaluation of the application, together with any written technical comments the department deems necessary. Such request and technical comments may be sent by electronic means if the applicant or authorized agent has indicated an agreement to accept communications by electronic means, either by so indicating on the application or by a signed statement from the applicant or authorized agent that communicating by electronic means is acceptable. Any request for additional information under this subparagraph shall specify that the applicant submit such information as soon as practicable and shall notify the applicant that if the requested information is not received within 60 days of the request, the department shall deny the application. The department may grant an extension of this 60-day time period upon request of the applicant.
(3) Where the department requests additional information pursuant to subparagraph (a)(2), within 30 days of the department's receipt of a complete response to the department's information request:
(A) Approve or deny the application, in whole or in part; or
(B) Commence a non-adjudicative proceeding in accordance with this chapter and rules adopted by the commissioner; or
(C) Extend the time for response for good cause and with the written agreement of the applicant.
(4) Where no request for additional information is made pursuant to subparagraph (b), within 75 days from the issuance of the notice of administrative completeness, or 105 days if the application proposes more than one acre of jurisdictional impact:
(A) Approve or deny the application, in whole or in part; or
(B) Commence a non-adjudicative proceeding in accordance with this chapter and rules adopted by the commissioner.
(5) Where the department has commenced a non-adjudicative hearing on an application filed under this chapter, within 60 days following the closure of the hearing record, approve or deny the application either in whole or in part.
(b) The time limits prescribed by this paragraph shall supersede any time limits provided in any other provision of law. If the department fails to act within the applicable time frame established in subparagraphs (a)(2) and (c)(4), the department shall notify the applicant that a determination was not made within the statutory time requirements. Upon this notice, the department shall reimburse the applicant 25 percent of the application fee. Within 14 days following the date on which action should have been taken pursuant to the applicable time frame established in subparagraphs (a)(2) or (a)(4), the department shall issue an approval or denial of the permit application, or reach a mutually acceptable agreement with the applicant for an extension of the time limit to act upon the application. After 14 days, if the department has not rendered a decision or made an agreement for an extension, an additional 25 percent of the application fee shall be reimbursed to the applicant.
(c) If extraordinary circumstances prevent the department from conducting its normal function, time frames prescribed by this paragraph shall be suspended until such condition has ended, as determined by the commissioner.
(d) The time limits prescribed by this paragraph shall not apply to an application filed after the applicant has already undertaken some or all of the work covered by the application, or where the applicant has been adjudicated after final appeal, or otherwise does not contest, the department's designation as a chronic non-complier in accordance with rules adopted pursuant to this chapter.
(e) Any request for a significant amendment to a pending application or an existing permit which changes the footprint of the permitted fill or dredge area shall be deemed a new application subject to the provisions of RSA 482-A:3, I and the time limits prescribed by this paragraph. ""Significant amendment'' means an amendment which changes the proposed or previously approved acreage of the permitted fill or dredge area by 20 percent or more, relocates the proposed footprint of the permitted fill or dredge area, includes a prime wetland or surface waters of the state, includes a wetland of a different classification as classified by the department, or includes non-wetland areas requiring permits for filling and dredging. This meaning of ""significant amendment'' shall not apply to an application amendment that is in response to a request from the department.
XV. (a) Utility providers who maintain and repair existing utility services within existing rights of way under the Best Management Practices Manual for Utility Maintenance in and Adjacent to Wetlands and Waterbodies in New Hampshire published by the department of resources and economic development, and who have complied with subparagraphs (b)-(e) shall satisfy the permitting requirements of this section, including any portion located in or adjacent to a prime wetland, for minimum impact activities as defined by rules adopted by the commissioner.
(b) Appropriate notice to the department shall include the following information:
(1) The name and address of the person, employed by the utility provider responsible for overseeing the maintenance.
(2) A brief written description of the nature of the work to be conducted.
(3) A copy of the appropriate United States Geological Survey topographic map with the locations of the projects indicated.
(c) Appropriate notice to the town clerk of each municipality in which work will occur shall include the name of a utility provider contact and a brief description of the work to be conducted.
(d) A one-time annual filing fee of $200 per town, not to exceed a maximum of $10,000, shall accompany the notice to the department. Such fees shall be held in accordance with paragraph III.
(e) No additional fee shall be required for amendments to the notification as long as additional towns are not included in the amendment. Additional towns included in the amendment shall be subject to an additional fee of $200 per town, not to exceed the annual maximum under subparagraph (d).
Source. 1989, 339:1. 1990, 3:84, 85; 83:2. 1991, 20:3; 273:1. 1992, 37:2, 3; 278:3, 6. 1994, 26:1. 1995, 206:2; 236:1, 2. 1996, 250:2; 296:40-42. 1997, 212:1-3. 1998, 224:1, eff. Aug. 23, 1998. 2001, 144:1, eff. July 1, 2001. 2002, 272:15, eff. May 18, 2002. 2003, 224:1, 2, eff. July 1, 2003; 224:3, eff. July 1, 2010. 2004, 2:1, eff. March 5, 2004; 116:4, eff. May 17, 2004. 2005, 29:1, eff. May 10, 2005. 2007, 211:1, eff. Aug. 24, 2007; 263:32, eff. July 1, 2007; 263:33, eff. July 1, 2010; 269:3, eff. July 1, 2007; 269:7, eff. July 1, 2011. 2008, 5:24, eff. July 1, 2008; 363:1, eff. Sept. 9, 2008. 2009, 185:1, eff. Sept. 11, 2009; 201:1, eff. July 15, 2009; 201:2, eff. July 1, 2010 at 12:01 a.m.