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Earlier this month, the New Hampshire Department of Environmental Services (NHDES) issued new draft rules for activities, including logging, in and around wetlands. This is the second set of draft rules, following the first draft issued in January. The first draft was under development for several years, and the New Hampshire Timberland Owners Association (NHTOA) was a member of the wetlands rules advisory committee. However, public hearings held after the first draft was issued brought a torrent of criticism, forcing NHDES to go back to the drawing board.

The new draft rules contain both good and bad news for landowners, loggers, and foresters.

The good news:

  • It appears NHDES heard the NHTOA's concerns earlier this year.
  • This draft is an improvement from the January draft, but it still needs more work.

    The bad news:

  • Sections of the rules are still very confusing to navigate, with multiple cross-references and apparent incorrect cross references.
  • These rules do not improve the current wetland rules (i.e. no crossing dimensions or other standards were modified).
  • There are several new definitions that appear to extend the regulatory authority of the rules into other areas beyond water quality (e.g. wildlife).
  • Under the new draft rules, regulating timber management in or adjacent to a prime wetland is still very subjective.
  • Managing timber in floodplains will be more difficult.

New definitions in the new draft rules include:

  • “Floodplain wetland,” which is a wetland located within a 100-year floodplain;
  • “Priority resource area” (PRA), a new jurisdictional area subject to a number of specific conditions. PRAs raise permit review status (i.e. all activities in a PRA automatically require a major project permit);
  • “Temporary impacts,” describing adverse conditions or effects that will be reversed when the authorized work has been completed and pre-construction conditions have been re-established. The term includes but is not limited to ruts caused by heavy machinery that are smoothed when the work is completed and the installation and subsequent removal of swamp mats, construction mats, corduroy roads, geotextile fabric, or other erosion or sediment control practices.

This is a very complex document and the NHTOA is still reviewing it to understand the practical and financial impact these rules would have on forest management. We urge our members interested in this to also look at the summary of the status of the wetlands rulemaking here. And please look for future updates with more details in the NHTOA's magazine, The Timber Crier, and in our e-newsletter, Forest Fax.

But overall, the second draft is a big improvement from the first draft, and the NHTOA thanks the NHDES for hearing our concerns. The NHTOA is ready to work with NHDES on sections of the draft that we think still need some re-drafting.

We urge our members to attend one or more of the seven public hearings on the second draft that NHDES has scheduled from Dec. 3rd through the 13th.  Here are dates, times, and locations:

  • Monday, Dec. 3, 2018: NHDES Headquarters, Room 208C, 29 Hazen Drive, Concord, N.H. 2:00 – 4:00 p.m.
  • Monday, Dec. 3, 2018: NHDES Headquarters, Room 208C, 29 Hazen Drive, Concord, N.H. 6:00 – 8:00 p.m.
  • Tuesday, Dec. 4, 2018: Keene Parks and Recreation Center, 312 Washington St., Keene, N.H. 6:00 – 8:00 p.m.
  • Thursday, Dec. 6, 2018: Laconia City Hall, 45 Beacon St. East, Laconia, N.H. 6:30 – 8:30 p.m.
  • Tuesday, Dec. 11, 2018: North Country Resource Center, 629B Main St., Lancaster, N.H. 5:30 – 7:30 p.m.
  • Thursday, Dec. 13, 2018: NHDES Pease Field Office, Room A, 222 International Dr., Suite 175, Portsmouth, N.H. 2:00 – 4:00 p.m.
  • Thursday, Dec. 13, 2018: NHDES Pease Field Office, Room A, 222 International Dr., Suite 175, Portsmouth, N.H. 6:30 – 8:30 p.m.

If you’d like to make comments on the draft rules at any of these public hearings, please emphasize the following two points:

  • The final rules need to be easy to understand. Any landowner, or land manager should be able to read them and know what approvals their project will require. There are sections within these rules that still need considerable clarification.
  • The final rules also must recognize the unique nature of forest management. The rules should recognize the uniqueness (e.g. ephemeral impacts, habitat enhancement, etc.) of forest management projects and that forestry is a beneficial land use for water, wildlife, and forest health. These rules should promote forest management.    

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SEPTEMBER 13, 2018 – The New Hampshire Legislature performed a notoriously difficult task today by voting to override the Governor’s veto of SB365, a bill to support N.H.’s six independent biomass plants and waste-to-energy facility. The Senate vote was 21-3 for the override, but the House vote was much closer, 226-113. The House overrode Gov. Sununu’s veto by a single vote.

 

Since Sununu’s June vetoes of SB365 and another renewable energy bill, SB446, a concerted effort was launched to correct the misinformed actions.

 

“The Legislature made the right call to override the veto of SB365. When you consider the vast impacts this bill has not only on various sectors of NH’s economy, but also on NH’s established and treasured values, the small cost is vastly outweighed by the benefits,” said Jasen Stock, Executive Director of the New Hampshire Timberland Owners Association. “In addition, the override successfully protects NH from the long-term $17 million annual cost our state would have to pay to replace lost generation capacity. Our state’s forestry, recreation, tourism, and agricultural industries were on the line, and we thank the legislature for hearing the facts and fixing the Governor’s mistake.”

 

Unfortunately, the Legislature’s affirmative votes did not extend to SB446, another bill championed by broad bipartisan support that would have raised the net metering project cap from 1 MW to 5MW.

 

“SB446 was designed to correct an arbitrary regulatory cap that is restrictive to large businesses and municipalities,” says Madeleine Mineau, Executive Director of the NH Sustainable Energy Association. “One megawatt is not enough to cover the energy needs of a large school or a manufacturing facility. In order to enable these entities to control their own energy costs and provide opportunity for low income individuals to benefit from renewable energy, the project cap needs to be raised so projects can be sized correctly.”

 

Prominent NH businesses including Dartmouth-Hitchcock, FoodState, Worthen Industries, and Wirebelt, as well as many NH cities and towns, were outspoken proponents of SB446. “In a state where many electric costs are out of our control in the regional market, this bill was the best chance NH had to promote freedom of energy choice, competition in the energy market, and more energy independence through diverse, local generation,” continues Mineau. “It is unfortunate that the Legislature did not support a bill important for NH’s energy future.”

 

WASHINGTON (November 1, 2018) – Today, U.S. Environmental Protection Agency (EPA) Acting Administrator Andrew Wheeler, along with U.S. Department of Agriculture (USDA) Secretary Sonny Perdue and U.S. Department of Energy (DOE) Secretary Rick Perry, sent a letter to the House and Senate Committee on Appropriations. The letter describes the agencies’ work to ensure consistent federal policy on forest biomass energy and promote clear policies that encourage the treatment of forest biomass as a carbon-neutral renewable energy solution.

The use of biomass from managed forests can bolster domestic energy production, provide jobs to rural communities, and promote environmental stewardship by improving soil and water quality, reducing wildfire risk, and helping ensure our forests continue to remove carbon from the atmosphere.

The announcement by Administration officials backs up the successful implementation in New Hampshire of Senate Bill 365, which breathed new life into the state's six independent biomass plants. SB 365 is the natural extension, at the state level, of the Administration's biomass policy. 

“This letter codifies EPA’s partnership with USDA and DOE to develop clear and effective policies that treat forest biomass as a carbon-neutral energy source,” said EPA Acting Administrator Andrew Wheeler. “Providing clarity and certainty regarding the treatment of forest biomass as carbon neutral will support good-paying jobs in rural communities, protect our nation’s air quality, and remove unnecessary regulatory burdens.”

“Responsibly using the fuels from our forests is both good for the environment and good for struggling rural economies. Multiple studies have found that demand for wood products, including wood for energy, actually serves to promote investment in forest management and helps to maintain or increase the amount of land in forests,” said USDA Secretary Perdue. “A stronger bioenergy market helps America achieve a variety of forest management and sustainability goals, including: reducing wildfire risks, improving forest health, increasing restoration, watershed improvements, creating new wildlife habitat, timber stand improvement, aesthetics, and more.”

“Biomass is a key part of the Administration’s all-of-the-above energy strategy,” said DOE Secretary Perry. “The Department of Energy supports the men and women in the agricultural and forest industries that help provide America with clean, secure, and affordable sources of bioenergy.”

The letter states, in part:

“The interagency approach to biomass energy provided by forests and other lands and sectors will be guided by an appreciation that forests and other lands and sectors are managed to provide multiple environmental, social, and economic benefits to our communities, while simultaneously contributing to U.S. energy independence and job creation.”

Maintaining healthy forests can contribute to U.S. energy independence, stimulate the creation of jobs, and provide multiple environmental and social benefits. The letter describes each agency’s work in this area and their intent to continue to collaborate across the federal government, with industrial partners, states, tribes, local governments, and non-governmental organizations to ensure that biomass plays a key role in addressing the energy needs of the U.S. in an environmentally and economically beneficial way.

Today’s letter ensures the agencies’ actions moving forward will provide certainty to rural communities and the forest industry while supporting economic growth. 

Background

On March 23, 2018, President Trump signed into law the Consolidated Appropriations Act, 2018 (H.R. 1625), where Congress explicitly directed EPA, USDA, and DOE to establish policies that “reflect the carbon neutrality of forest biomass for energy production, provided the use of biomass for energy does not result in the conversion of forested lands to non-forest use.” It also emphasized the importance of the United States’ forest sector to the energy needs of our country. 

EPA, USDA, and DOE believe the goals of H.R. 1625 are consistent with and complementary to the President’s 2017 Executive Order on Promoting Energy Independence and Economic Growth, which emphasizes utilizing domestic sources of energy that are affordable, reliable, safe, secure, and clean.

On April 23, 2018, EPA issued a policy statement making clear that future regulatory actions will treat biomass from managed forests will be treated as carbon neutral when such biomass is used for energy production at stationary sources.  

 

SEPTEMBER 12, 2018 -- Earlier today, representatives from the New Hampshire Timberland Owners Association (NHTOA), New Hampshire Sustainable Energy Association (NHSEA), and the Granite State Hydropower Association (GHSA) presented the N.H. Speaker of the House and N.H. Senate President with hundreds of petitions containing more than 6,500 signatures from more than 200 towns urging the N.H. House and Senate to override the vetoes by Gov. Chris Sununu of Senate bills 365 and 446. The Legislature will vote on Thursday, September 13, whether to override the vetoes. 

 

The petition drive is one of the largest veto-override petition drives in New Hampshire history. The drive gathered a total 6,508 signatures from N.H. residents in 201 different towns.

 

“These petitions come from every region in the state and from our smallest rural communities to our largest cities,” said Tom Thomson, Tree Farmer and son of former N.H. Governor Meldrim Thomson. “This is a statewide issue and clearly the people of New Hampshire want these bills, both of which passed the House and Senate with overwhelming bipartisan majorities, to become law so that we can continue to manage healthy forests while expanding renewable energy opportunities for New Hampshire’s businesses and municipalities.” 

 

Both bills focus on renewable energy. SB 365 provides a three-year bridge for New Hampshire’s six independent biomass power plants (who burn woodchip to create electricity). This will allow the Governor’s Office of Strategic Initiatives to complete its legislatively mandated biomass study (per SB 517, passed last year).

 

SB 446 increases the allowable size of an electric generation project that a business, school, or municipality can use to self-generate power (aka “net meter”) to 5 megawatts and sets the electricity sale and purchase pricing to avoid cost-shifting. This allows more businesses and municipalities to tackle the issue of high electric rates on their own.  Self-generation projects may use small hydro, solar, or even biomass.  This will help N.H. businesses stay competitive.  

 

“The Governor’s statement that biomass represents ‘a manageable 3.5% dip in revenue’ is untrue and misleading,” Thomson added. “In fact, for many timber harvesting companies biomass represents between 40 and 50 percent of their revenue. And without the market for woodchips that the biomass energy plants provide, for many landowners sustainable forest management is economically impossible.”

 

Thomson, who owns and manages more than 2,000 acres of woodlands in the Orford, N.H., region, also noted that the petitions have been signed not just by those in the timber industry and landowners, but also by hundreds of people in New Hampshire’s recreation industry, which would be severely impacted if landowners close their property to public recreation as a result of the vetoes. 

 

“We really see SB 446 as a huge opportunity for businesses and municipalities to save on their electric bills.  And the investment in small renewables would drive economic activity, support jobs, and increase state and local tax revenues, all while avoiding subsidies and cost-shifting,” said GHSA Co-President Bob King.  “I can’t emphasize that last point enough - SB 446 avoids subsidies and cost-shifting, and it appears the Governor failed to appreciate that critical fact.  The Legislature got it right the first time with SB 446, and this petition drive shows the strong widespread support for overriding the Governor’s vetoes on both bills.”