The N.H. Department of Environmental Services (NHDES) and the N.H. Fish and Game Department (NHFG) will host a public hearing on April 8, 2021, to solicit comments on proposed changes to New Hampshire’s Alteration of Terrain rules (AoT).
New Hampshire law (RSA 485-A:17) states that any person proposing to dredge, excavate, place fill, mine, transport forest products, or undertake construction in or on the border of the surface waters of the state, and any person proposing to significantly alter the characteristics of the terrain in such a manner as to impede the natural runoff or create an unnatural runoff, shall submit a plan to the NHDES and obtain a permit. For these activities NHDES issues one of three permits:
- Alteration of Terrain Permit (AoT);
- General permit-by-rule (“transporting forest products” falls into this category); or
- Timber harvesting permit-by-rule.
Currently there are no additional permitting/paperwork requirements for forest product transporters to obtain a general permit-by-rule, provided the “transportation is occurring within an area bounded by permanent roadways.” For a timber harvesting operation to obtain a “timber harvesting permit-by-rule,” four conditions must be met:
- An intent to cut has been filed and signed;
- The project adheres to Best Management Practices for erosion control;
- If needed, the operation obtains a wetlands permit; and
- Roads are not being converted to a non-timber harvest operational use.
Two years ago, the state (NHDES) lost a N.H. Supreme Court case when the agency was sued for not following state rules when issuing AoT permits. This case focused on how the AoT permitting process handled threatened and endangered species. The AoT rules, at the time, contained the following condition for issuance of a permit:
(h) The project has been designed in a manner that will not result in adverse impacts to state- or federally-listed threatened or endangered species or habitat for such species that has been determined by the executive director of the New Hampshire fish and game department to be critical pursuant to RSA 212-A:9.
In its decision, the court ruled that because the rule states “will not result,” NHDES was illegally issuing permits if there were any adverse impacts. Until this ruling, NHDES did consider impacts when issuing permits as the agency would balance any impact with restoration or mitigation efforts. The court ruling ended that practice, forcing NHDES to adopt an emergency rule. The emergency rule basically states the NHDES will not issue an AoT permit unless the Executive Director of the N.H. Fish and Game Department has first determined the project will not result in the destruction or modification of habitat critical to a state or federally listed threatened or endangered species as demonstrated by the report of a study performed by a trained wildlife biologist.
Proposed rule change
The rule change proposal being discussed on April 8 modifies the threatened and endangered species requirement by simply requiring a consultation with NHFG when a threatened or endangered species is found in a project area requiring an AoT permit, and any conservation measures recommended by NHFG shall be incorporated into the AoT permit application. To see a copy of the proposed language, click here.
Although general permits-by-rule for transporting forest products and Timber Harvesting permits-by-rule are not directly impacted by the proposed rule change (because it applies to AoT permits), the NHTOA will submit comments to NHDES/NHFG seeking clarification that general permits-by-rule for transporting forest products and Timber Harvesting permits-by-rule remain unaffected by the proposed rule. Primary points we will make include:
- Forest management and transportation of forest products from a timber sale are short-term activities that generally have no long-term negative impact;
- Forest management is a traditional and desirable land use that should be encouraged and not encumbered with additional regulatory reviews and approvals;
- Forest management projects benefit most wildlife species (threatened/endangered, and non-threatened/endangered);
- Most landowners voluntarily participated in the wildlife surveys that identified any potential threatened or endangered species. It would be unfair to reward that altruism with potential restrictions on their ability to manage their forest.
The deadline for written comments is 4 p.m. on April 15.
If you wish to attend the zoom hearing on April 8 at 2 p.m., click on this link.