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.