Conservation Commission Meeting Minutes of January 2, 2019

[sic 2005 Town Meeting minutes]. Members all appoved, though Mr. Sims wondered if the enabling legislation allowed the town either authority – the right to ease restrictions or the right to increase them.  Members believe the town attorney clarified this issue. Harry Wolhandler subsequently moved to propose the draft Warrant Article at Town Meeting. Andrea Polizos seconded. Members voted unanimously in favor. Mr. Wolhandler noted he has excerpted the NH Municipal Conservation Fund Guidebook for a handout at Town Meeting and for distribution prior. He will bring the draft to the next HCC meeting. Separately, Kathy Scott moved to have Angela Hendrickson please order three copies of the NH Municipal Conservation Fund Guidebook for townspeople and the HCC. All voted in favor.Mr. Wolhandler will draft an article for Common Threadsabout the Warrant Article.

NH State Proposed Changes to Wetlands Permit Review
Members talked at length about the proposed changes by the state to streamline the DES application review process. Mr. Wolhandler explained that DES aims to focus its review efforts on maximum impact projects and to expedite the process for projects that meet the criteria for minimal impact. HCC members expressed deep concern that the proposed changes are driven by financial need and lobbying efforts of developers, with no concern for environmental impact, particularly on water resources. Mr. Wolhandler noted that the changes do not diminish standards or requirements for wetland activities; however, the review process for Permit by Notification projects would be limited to administrative review and would not include local Conservation Commission input.

Mr. Wolhandler then reviewed the specifics of the proposed regulations and the comments and concerns of the NHACC. HCC members shared their own opinions, particularly their concern that a five day review period (currently ten days) was insufficient to allow proper consideration or objection. The group discussed the tiered review process as related to PBN categories and the additional concerns that the pre-application process is unclear.

Mr. Sims offered several objections, including the focus on simplification and reduced cost without mention of the goal of the changes, without mention of clean water and without consideration of input or authority of local experts. Mr. Sims believe local experts could assist the state where the state lacks manpower. He noted the lack of attention to local resources and authority and processes and how increased centralization ignores these. Mr. Sims would instead like to see the local role bolstered.

The group discussed the “one stop” database, a public file maintained by the state of all pending applications. All agreed Con Com should check this on a regular basis. Even though the proposed limited review is restricted to minimal, PBN, projects, members still expressed concern that local authority is being circumvented by deregulation. Mr. Wolhandler noted that all interests have to be balanced and that it makes sense for certain projects (for example, bank stabilization or boat house repairs) to be expedited; he added that this allows for more time and resources to be spent on higher impact projects. Later, Don Scott explained from his perspective and experience in the state’s application process why it makes sense for the local process to be bypassed on minimal impact proposals. He added that the proposals have to meet very specific criteria to qualify for expedited review.

Kathy Scott asked how the process would affect the workload of the Building Inspector. It was unclear what the effect would be, although there was concern about who local watchdog is and whether there will be any oversight at all. Mr. Wolhandler noted that local ordinances still must be followed.

The group turned to specific comments that could be submitted by Mr. Sims in advance of the comment deadline of January 8.  Discussion surrounded appropriate recommendations for the proposed rules versus comments that relate to general policy as well as practical impacts of the reduced timetables. Regarding proposed reduction in review times, Mr. Scott explained that the clock does not start ticking until all information is accepted and deemed complete by the state. Following further discussion and agreement that Barbara Richter’s comments reflect the opinions of the HCC in general, Mr. Wolhandler moved to endorse the draft NHACC comments, as they appear in the NHACC’s December e-newsletter, for submission to the state.  The vote was unanimously in favor. These comments appeared as follows:

The following are a list of our major areas of concern:

1. Minor impacts have no CC review and will be processed in 5 days:
   The proposed process does not allow conservation commission review on Lower Scrutiny Approval (LSA) permits.  Our concern is that NHDES only has a 5-day timeframe for review/approval.  LSA eligibility will be determined not only by impact based on square and/or linear footage but also on the type of resource impacted as described in the Priority Resource Areas.
2. Loss of local review and communication:
   Without a review role for the commission in these lower threshold permits, you will not be informed about activities that have been permitted in your own community.  It was suggested that commissions could rely on the NHDES one-stop to stay up-to-date on permits. To stay informed, a commission would constantly need to be checking this database to know if something had been permitted in their community.  Commissions informed about permits are able to provide early reporting of unauthorized activities to NHDES. This critical role saves NHDES staff field inspection time, establishes commissions as an information resource in their community, and most importantly allows for intervention before resource impacts become costly to restore.
3. The “Priority Resource Area” should remain robust as in the first draft:
   The addition of the term “Priority Resource Area” provides more guidance to determine the impact to the wetland based on the value of the natural resource but the definition of Priority Resource Area was revised during the review process. Originally, the draft Priority Resource Areas included a long list of habitat, unique wetlands like fens and peatlands. The current list is more limited, and at a minimum, this section should be revised to include marsh of one acre or larger and exemplary Natural Communities identified by NH Dept of Natural Heritage Bureau.  It is important to include Prime Wetlands because of their size, unspoiled character, fragility or uniqueness.
4. Data review is limited:
   DES staff will rely on a series of map layers including NH Heritage Bureau and NH Fish and Game data checks to evaluate LSA applications.  As you know these data sets are reliant upon existing records. There have been numerous times where commissions shared information about local resources that were missing from these data sets and therefore provided a significant contribution to application review and resource protection.

1. Permits will be rushed through the process: 
   It is our concern that the 5-day review timeframe is a very short period of time to determine administrative completeness and accuracy and are concerned it will result in poor decisions under pressure to meet the reduced deadlines. Development is permanent and lasting.  The decision to fill wetlands should not be taken lightly or in haste.

1. More projects are eligible for quick 5-day review:
   We are concerned about some of the new project categories eligible for Permit By Notification such as commercial access and residential access. We feel 5 days does not afford the time to adequately screen these projects. We should not rush decision making when it has detrimental and lasting impacts on wetlands, aquatic habitat, and public health and safety. It strikes us that the review timeframe for these categories is the same as activities such as the establishment of a living shoreline which has beneficial impacts to a resource.  Let DES know how important it is to your commission to review commercial and residential access that impacts wetlands.  If possible, provide examples of commercial and residential projects that were improved because of your CC input and intervention.

1. The pre-application process is unclear: 
   There is a new process which establishes a role for the conservation commissions to be part of a pre-application process prior to application submission to DES.  This was changed during the review to a voluntary process with no required time frame.  If your commission would like to see a pre-application process required, you should provide comments directly to DES.  Ideally, the pre-application process would allow the applicant to consult with the local Conservation Commission and address any comments raised before submitting an application with DES. However, the draft rules do not provide any detail regarding this process including allowing access to the property for site visits or how any concerns should be addressed.  Currently, commissions can outline their questions and concerns and have DES work with the applicant to resolve issues. If commissions work directly with the applicant, the draft rules do not explain how to resolve conflicts or what recourse commissions have if the applicant does not want to entertain suggestions or recommendations.  Additionally, it should also be clear that the pre-approval process does not forfeit the ability for commissions to participate in the 40-day review period as defined by RSA 482-A.

The HCC further recommended, moved and unanimously voted in favor to recommend that the state make the full content of all Permit by Notification applications digitally available to local Conservation Commissions.Mr. Sims noted he would bring his own additional comments to the January 8 meeting.

Amphibian Crossing Program
Andrea Polizos shared input from Brett Thelen of the Harris Center. Ms. Thelen has already scheduled training dates for March. Somewhat concerned about low attendance, she suggested interested parties might want to attend the Keene session. HCC discussed how best to recruit parents and students to participate in the program and will coordinate with Ms. Thelen about scheduling a local training. Separately, Ms. Polizos will draft an article for Common Threads. Subsequently, Mr. Wolhandler moved to proceed with the Amphibian Crossing Program pending sufficient participation. Kathy Scott seconded. All voted in favor.

Update on easement – Jaquith Road
The information presented was mistakenly for the Houghton Road parcel owned by the Harris Center and not the town-owned parcel on Jaquith. Mr. LaMois will return to the registry and report back.

Given time constraints, members deferred discussion of remaining agenda items, including planning for local effects of climate change, aquatic invasive prevention, and reports from other boards and committees, to the February meeting.

As final matters, Les LaMois moved that the HCC reimburse Mr. Sims for Conservation Commission expenses of $75. Andrea Polizos seconded. The motion was unanimously approved with the exception of Mr. Sims who recused himself from the vote. Subsequently Mr. Wolhandler moved to reimburse Ms. Polizos for $70 in expenses for attendance at NH Lakes Association Conference. The motion was unanimously approved.

The meeting adjourned at 9:00 pm.