250-RICR-150-15-2
250-RICR-150-15-2. Rules and Regulations Governing the Administration and Enforcement of the Freshwater Wetlands Act
250-RICR-150-15-2
TITLE 250 – DEPARTMENT OF ENVIRONMENTAL MANAGEMENT
CHAPTER 150 – WATER RESOURCES
SUBCHAPTER 15 – WETLANDS
PART 2 – Rules and Regulations Governing the Administration and Enforcement of the
Freshwater Wetlands Act
2.1
Authority and Purpose.......................................................................................................................5
2.2
Administrative Findings.....................................................................................................................5
2.3
Incorporated Materials.......................................................................................................................8
2.4
Definitions..........................................................................................................................................8
2.5
Applicability and Regulated Activities..............................................................................................21
2.5.1
General Applicability to Freshwater Wetlands.............................................................................21
2.5.2
Jurisdictional Area.......................................................................................................................22
2.5.3
Freshwater Wetlands in the Vicinity of the Coast........................................................................22
2.5.4
Projects that Lie on or Cross the Jurisdictional Boundary...........................................................23
2.5.5
Prohibitions..................................................................................................................................25
2.5.6
Regulatory Applicability...............................................................................................................25
2.5.7
Applicability to Farming and Ranching Activities.........................................................................26
2.5.8
Existing Conditions......................................................................................................................26
2.6
Exempt Activities.............................................................................................................................27
2.6.1
General Conditions for Exempt Activities....................................................................................27
2.6.2
Limited Cutting of Vegetation......................................................................................................28
2.6.3
Limited Maintenance and Repair Activities................................................................................. 31
2.6.4
Demolition of Buildings or Accessory Structures.........................................................................35
2.6.5
Single-Family Residences and Accessory Structures.................................................................36
2.6.6
Non-Residential Buildings or Multifamily Residences and Accessory Structures.......................37
2.6.7
Emergency Environmental Protection.........................................................................................37
2.6.8
Site Remediation.........................................................................................................................28
2.6.9
Utility Emergencies......................................................................................................................28
2.6.10 New Utility Lines..........................................................................................................................39
2.6.11 Agricultural Practices By Any Property Owner Other Than a Farmer.........................................39
2.6.12 Normal Farming and Ranching Activities....................................................................................40
2.6.13 Conservation Activities................................................................................................................40
2.6.14 Monitoring and Research Activities.............................................................................................41
2.6.15 Temporary Educational, Recreational and Cultural Structures...................................................41
2.6.16 Moorings and Anchorage for Single Boats..................................................................................42
2.6.17 Fire Fighting................................................................................................................................ 42
2.6.18 Restoration Planting Projects......................................................................................................42
2.6.19 High Hazard and Significant Hazard Dams.................................................................................43
2.6.20 Low Hazard Dams.......................................................................................................................43
2.6.21 Crossing or Relocating an Area Subject to Storm Flowage........................................................44
2.6.22 Restoration of Freshwater Wetlands Resulting from Unauthorized Alterations..........................44
2.6.23 Control of Invasive Plants............................................................................................................45
2.6.24 Pedestrian Trails......................................................................................................................... 45
2.7
Standards Applicable to Regulated Projects and Activities and Variance Procedures...................46
2.7.1
Freshwater Wetlands and Buffer Protection Standards..............................................................46
2.7.2
Review Criteria............................................................................................................................50
2.7.3
Variances from Standards Applicable to Regulated Projects and Activities................................53
2.8
Application Types and General Application Requirements.............................................................57
2.8.1
Application Types........................................................................................................................57
2.8.2
Application Forms and Their Submission....................................................................................59
2.8.3
Signatures................................................................................................................................... 59
2.8.4
Site Plan Requirements...............................................................................................................61
2.8.5
Freshwater Wetland Edge Delineation and Related Requirements............................................63
2.8.6
Additional Site Work....................................................................................................................65
2.8.7
Requirements Regarding Use of Professionals.......................................................................... 66
2.8.8
General Fee Requirements.........................................................................................................67
2.8.9
Fee Schedule.............................................................................................................................. 68
2.8.10 Application Coordination............................................................................................................. 72
2.8.11 Coordination with Municipalities..................................................................................................72
2.8.12 Suspension of Application Process.............................................................................................73
2.8.13 Recording of Permits...................................................................................................................74
2.9
Request to Determine the Presence of Jurisdictional Area, Request to Verify Freshwater Wetland
Edges, or Request for Regulatory Applicability...........................................................................................74
2.9.1
Purpose.......................................................................................................................................74
2.9.2
Request to Determine the Presence of Jurisdictional Area.........................................................74
2.9.3
Request to Verify Freshwater Wetland Edges............................................................................ 75
2.9.4
Request for Regulatory Applicability........................................................................................... 77
2.10
General Permits.............................................................................................................................. 78
2.11
Application for a Freshwater Wetlands Permit................................................................................80
2.11.1 Purpose and Outcomes...............................................................................................................80
2.11.2 Application Submittal Requirements........................................................................................... 80
2.11.3 Review by the Department..........................................................................................................83
2.11.4 Permit Requirements, Conditions and Renewals........................................................................85
2.11.5 Department's Decision – Notification...........................................................................................86
2.11.6 Application Closure..................................................................................................................... 86
2.12
Application for a Significant Alteration.............................................................................................87
2.12.1 Purpose.......................................................................................................................................87
2.12.2 Application Submittal Requirements........................................................................................... 87
2.12.3 Completeness Determination....................................................................................................100
2.12.4 Public Notice and Participation – Public Hearings.................................................................... 100
2.12.5 Decision on Application for a Significant Alteration...................................................................103
2.12.6 Permit Requirements and Conditions........................................................................................104
2.12.7 Permit Compliance....................................................................................................................106
2.12.8 Appeal of Decisions...................................................................................................................106
2.12.9 Negotiated Settlements – Consent Agreements.......................................................................107
2.12.10Application Closure................................................................................................................... 107
2.13
Application Relating to Farmers....................................................................................................108
2.13.1 Definition of Farmer...................................................................................................................108
2.13.2 Regulated Areas for Certain Farming and Ranching Activities by Farmers..............................108
2.13.3 Normal Farming and Ranching Activities by Farmers...............................................................109
2.13.4 New Farm Ponds, New Farm Roads or New Drainage Structures Proposed by Farmers........109
2.13.5 Agricultural Practices by Other Persons....................................................................................110
2.14
Other Application Types................................................................................................................110
2.14.1 Application for Emergency Alterations...................................................................................... 110
2.14.2 Application for Permit Renewal.................................................................................................112
2.14.3 Application for Permit Modification............................................................................................113
2.14.4 Application for Permit Transfer..................................................................................................114
2.15
Enforcement..................................................................................................................................114
2.15.1 Enforcement..............................................................................................................................114
2.15.2 Revocation or Suspension of Determination or Permit............................................................. 115
2.15.3 Right to Request Administrative Hearing.................................................................................. 115
2.16
Municipal Petition Process............................................................................................................115
2.17
Public Access to Records..............................................................................................................116
2.18
Severability....................................................................................................................................116
2.19
Superseded Rules.........................................................................................................................117
2.20
Effective Date................................................................................................................................117
2.21
Specific Criteria for Identifying Freshwater Wetlands and Floodplain Edges................................117
2.21.1 Vegetated Freshwater Wetlands...............................................................................................117
2.21.2 Flowing and Standing Water Freshwater Wetlands..................................................................120
2.21.3 Floodplain..................................................................................................................................120
2.21.4 Floodway...................................................................................................................................121
2.21.5 Criteria for Identification of Freshwater Wetlands for Farmers Conducting Normal Farming and
Ranching Activities................................................................................................................................ 121
2.22
Freshwater Wetlands Jurisdictional Boundary Map......................................................................124
2.23
Statewide Buffer Zone Designations.............................................................................................125
2.24
Freshwater Wetlands Buffer Regions Map....................................................................................147
2.1
Authority and Purpose
A.
Authority: These Rules and Regulations (the Rules) are promulgated pursuant to
R.I. Gen. Laws §§ 2-1-20.1, 42-17.1-1 et seq., 42-17.6-1 et seq., 46-23-6, and in
accordance with R.I. Gen. Laws § 42-35-1 et seq.
B.
Purpose: These Rules are promulgated to:
1.
Describe the Department’s authority to administer and enforce R.I. Gen.
Laws §§ 2-1-18 through 2-1-27; the Freshwater Wetlands Act (the Act);
and
2.
Preserve, protect and restore the purity and integrity of all freshwater
wetlands, buffers and floodplains in the State of Rhode Island so that
these resources shall be available for all beneficial purposes, and thus
protect the health, welfare and general well-being of the people and the
environment of Rhode Island.
2.2
Administrative Findings
A.
The declarations of intent and public policy enumerated in R.I. Gen. Laws §§ 2-1-
18 and 2-1-19 are hereby adopted as the administrative findings upon which
these Rules are based.
B.
Consistent with these declarations, the Department makes the following findings:
1.
Freshwater wetlands, buffers and floodplains are ecological systems
performing functions that directly benefit the health, welfare and general
well-being of people and the environment.
2.
Any such freshwater wetland, buffer and floodplain functions as an
integrated ecological system, no portion or component of which is less
worthy of regulatory protection than the system as a whole. Buffers and
floodplains are important integral components of the flowing body of water
or the freshwater wetlands with which they are associated. It has been
established that maintaining lands adjacent to freshwater wetlands as
naturally vegetated buffers protects the functions and values of wetlands
and that such buffers in and of themselves perform vital ecological
functions.
3.
Freshwater wetlands, buffers and floodplains perform specific functions
and support specific values, including but not limited to the following:
a.
Wildlife and Wildlife Habitat: Freshwater wetlands and buffers are
important areas for the production and maintenance of a diversity of
wildlife. Freshwater wetlands and buffers provide habitat for
individual species and communities of animals and plants. Animals
include both game and non-game species, which may be either
obligate or facultative, and which may be permanent residents, or
they may be seasonal or transient in nature. Freshwater wetlands
serve as travel corridors; nesting, feeding, resting, nursery and
brood-rearing sites; drinking water sources and escape cover; and
provide seasonal breeding, migration and over-wintering habitat for
wildlife. Freshwater wetlands and buffers provide critical habitat for
some plant and animal species and also provide habitat for rare
animal and rare plant species.
b.
Recreation and Aesthetics: Freshwater wetlands and buffers
support active and passive recreational and aesthetic values that
are important to the general public. They provide the opportunity for
recreational activities, including but not limited to: hunting, fishing,
trapping, cross-country skiing, ice skating, boating, water-skiing,
canoeing, camping, swimming, bicycling, hiking, walking,
horseback riding, harvesting of natural foods or plant materials,
birdwatching and other animal observation, education and nature
studies, and photography. Aesthetic values include, but are not
limited to, the visual, aural and cultural qualities of the freshwater
wetland and buffer. Without limitation, these include the freshwater
wetland’s and buffer’s prominence as a distinct feature in the local
area, including its value as open space; whether it is a rare
freshwater wetland type; whether it offers or provides suitable
habitat for any rare animal or rare plant species; whether it has any
outstanding or uncommon geomorphologic features; or whether it
contains or may contain material of archaeological, historical, or
cultural significance.
c.
Flood Protection: Freshwater wetlands, buffers, setbacks and
floodplains protect life and property from flooding and flood flows by
storing, retaining, metering out and by otherwise controlling flood
waters from storm events. Freshwater wetlands, buffers and
floodplains also control the damaging impacts of flood flows by
providing frictional resistance to flood flows, by dissipating erosive
forces, and helping to anchor the shoreline.
d.
Surface Water and Groundwater: Freshwater wetlands and buffers
provide and maintain surface and groundwater supplies by acting
as recharge or discharge areas, and, in the case of some ponds,
acting as surface water reservoirs. Although groundwater recharge
and discharge functions and values may vary seasonally,
freshwater wetlands and buffers, either individually or cumulatively,
may be an important factor in replenishing ground and surface
water supplies, maintaining stream flows, transporting surface
waters, and storing and distributing surface waters and
groundwater during periods of drought.
e.
Water Quality: Freshwater wetlands and buffers protect and
maintain water quality by retaining and removing nutrients; filtering
and removing pollutants; removing sediments; producing oxygen;
reducing turbidity; maintaining or modifying stream flow;
maintaining temperature and oxygen regimes in both standing and
flowing surface waters; and providing and maintaining safe drinking
water supplies.
4.
The cumulative impact of incremental alterations to freshwater wetlands,
buffers and floodplains that occur at different times or in different locations
within the same system, or both, may constitute a significant alteration,
even if a single proposed alteration may not in and of itself constitute a
significant alteration.
5.
Consistent with the purposes of the Act, it is the public policy of the State
to preserve the purity and integrity of all freshwater wetlands, buffers and
floodplains in Rhode Island. Random, unnecessary or undesirable
alteration of any freshwater wetland, buffer or floodplain is contrary to the
Act and not in the best public interest because of the adverse impacts of
such alterations on their functions and values.
6.
The Department recognizes that dams have created freshwater wetlands
and buffers that may provide important wildlife habitats and recreational
areas and may provide other important functions, values and benefits
such as flood storage areas. Also, consistent with its responsibilities under
R.I. Gen. Laws Chapter 46-19, the Department finds that many dams in
the State are in disrepair and may present safety hazards to the public.
The Department hereby acknowledges that, as a result of an analysis of
alternatives for addressing a dam’s state of disrepair, the removal or
substantial alteration of a dam may be required by the Department for
reasons of public safety. The Department finds that the removal or
substantial alteration of a dam for public safety reasons may be deemed
consistent with the authority and purposes of these Rules provided that no
other feasible alternative is available and impacts related to the dam’s
removal or alteration are assessed and acceptably mitigated in
accordance with these Rules.
2.3
Incorporated Materials
A.
These Regulations hereby adopt and incorporate the “Rare Native Animals of
Rhode Island” (2006) prepared by the Department by reference, not including
any further editions or amendments thereof and only to the extent that the
provisions therein are not inconsistent with these Regulations.
B.
These Regulations hereby adopt and incorporate the “Rhode Island Rare Plants”
(2016) prepared by the Rhode Island Natural History Survey from R. W. Enser
(2007) and the Rhode Island Wildlife Action Plan Appendix 1d (2015), by
reference, not including any further editions or amendments thereof and only to
the extent that the provisions therein are not inconsistent with these Regulations.
C.
These Regulations hereby adopt and incorporate the U.S. Army Corps of
Engineers “National Wetland Plant List: State of Rhode Island Wetland Plant List”
(2018) by reference, not including any further editions or amendments thereof
and only to the extent that the provisions therein are not inconsistent with these
Regulations.
2.4
Definitions
A.
For the purposes of these Rules, the following terms shall have the following
meanings:
1.
"AAD" means the Department’s Administrative Adjudication Division for
Environmental Matters.
2.
"Accessory structure" means a structure that has an ancillary or
supplementary function to the main use of the property. Accessory
structures include, but are not limited to, amateur radio towers; flag poles;
swing sets; slides; decks; patios; gardens; sheds; in-ground or above-
ground swimming pools; fences that do not span or obstruct public access
to rivers, streams, and other waterbodies (along and within boundaries or
areas such as existing home lawns and driveways); treehouses; drinking
water wells with a volume of withdrawal no greater than five hundred (500)
gallons a day; walls; stairs; walks; and pervious driveways.
3.
"Act" means the Freshwater Wetlands Act as set forth in R.I. Gen. Laws
§§ 2-1-18 through 2-1-27, as from time to time amended.
4.
"Alter" or "alteration" means to change (act of changing) the character of a
freshwater wetland, buffer, floodplain, area subject to flooding or area
subject to storm flowage as a result of activities within or outside of these
resources. Such activities include, but are not limited to, the following:
Excavating; draining; filling; placing trash, garbage, sewage, road runoff,
drainage ditch effluent, earth, rock, borrow, gravel, sand, clay, peat, or
other materials or effluents upon; diverting water flows into or out of;
diking; damming; diverting; clearing; grading; constructing in; adding to or
taking from; or other activities that individually or cumulatively change the
character of any freshwater wetland, buffer, floodplain, area subject to
flooding or area subject to storm flowage.
5.
"Aquatic base flow" or "ABF" means minimum river or stream flow
conditions necessary to sustain indigenous aquatic fauna and flora, as
determined by one (1) of the following:
a.
Where a minimum of twenty-five (25) years of U.S. Geological
Survey gauging records exist on a river or stream that is basically
free-flowing, the ABF for all times of the year shall be equivalent to
at least the median August flow for the period of record unless
spawning and incubation requirements exceed the median August
flow; or
b.
Where a river or stream lacks adequate flow data, or where it is
regulated by a dam or upstream diversion, the ABF shall be at least
one half (0.5) cubic feet per second per square mile of drainage
(cfsm), unless spawning and incubation requirements exceed this
minimum; or
c.
Where concerns exist regarding spawning and incubation flow
requirements, the ABF shall be one (1.0) cfsm in
October/November and four (4.0) cfsm in April/May for the entire
applicable spawning and incubation periods of aquatic fauna; or
d.
Where a specific in-stream flow study identifies an ABF based upon
the specific needs of aquatic fauna or flora, the ABF shall conform
to the results of that study, provided the ABF is approved by the
Department.
6.
"Area subject to flooding" or "ASF" means areas that include, but are not
limited to, low-lying areas that collect, hold or meter out storm and flood
waters from any of the following: rivers, streams, intermittent streams or
areas subject to storm flowage.
7.
"Area subject to storm flowage" or "ASSF" means areas that include
drainage swales and channels that lead into, out of, pass through or
connect other freshwater wetlands or coastal wetlands, and that carry
flows resulting from storm events, but may remain relatively dry at other
times.
8.
"Best management practices" or "BMPs" means generally accepted
practices, procedures and management techniques that include, but are
not limited to, schedules of activities, prohibitions, maintenance
procedures, structural and non-structural methods, and other
management approaches to prevent or minimize any reduction of the
functions and values associated with freshwater wetlands, buffers or
floodplains.
9.
"Bog" means consistent with R.I. Gen. Laws § 2-1-20(3), a place where
standing or slowly running water shall be near or at the surface during a
normal growing season and/or where a vegetational community shall have
over fifty percent (50%) of the ground or water surface covered with
sphagnum moss (Sphagnum) and/or where the vegetational community
shall be made up of one (1) or more of, but not limited to nor necessarily
including all of the following: blueberries and cranberries (Vaccinium),
leatherleaf (Chamaedaphne calyculata), pitcher plant (Sarracenia
purpurea), sundews (Drosera), orchids (Orchidaceae), white cedar
(Chamaecyparis thyoides), red maple (Acer rubrum), black spruce (Picea
mariana), bog aster (Aster nemoralis), larch (Larix laricina), bog rosemary
(Andromeda glaucophylla), azaleas (Rhododendron), laurels (Kalmia),
sedges (Carex), and bog cotton (Eriophorum).
10.
“Buffer” means pursuant to R.I. Gen. Laws § 2-1-20(4), an area of
undeveloped vegetated land adjacent to a freshwater wetland that is to be
retained in its natural undisturbed condition or is to be created to resemble
a naturally occurring vegetated area. For the purpose of defining buffer in
these Rules, “adjacent to” means land area within the buffer zone.
11.
"Buffer zone" means an area of land within a jurisdictional area that is
contiguous to a freshwater wetland and the width of which is designated in
§ 2.23 of this Part.
12.
"Completed application" means any application that, in the opinion of the
Department, provides all of the requisite information necessary to process
the application in accordance with R.I. Gen. Laws § 2-1-22(a) and these
Rules.
13.
"CRMC" means the Rhode Island Coastal Resources Management
Council.
14.
"CRMC regulations" means the Rules and Regulations Governing the
Protection and Management of Freshwater Wetlands in the Vicinity of the
Coast (650-RICR-20-00-2) adopted by the Coastal Resources
Management Council pursuant to R.I. Gen. Laws § 46-23-6.
15.
"Cumulative impact" means the combined impact on the freshwater
wetland, buffer and floodplain environment and their functions and values
which may result from past, present and future alterations to the same
freshwater wetland, buffer and floodplain system, regardless of what
agency or person undertakes such alterations.
16.
"Dam" or "damming" means any barrier made by humans, including
appurtenant works, that impounds or diverts surface water. Damming
means to impound water by means of a dam.
17.
"Department" means the Department of Environmental Management
(DEM). When used in the context of an action, authorization or permit, it
shall mean the agent of the Department duly authorized by the Director to
take such action, grant such authorization or approve such permit.
18.
"Dike" means a berm or structure that impedes, redirects, diverts, or
otherwise controls the flow or elevation of water.
19.
"Director" means, as defined by R.I. Gen. Laws § 2-1-20(6), the Director of
the Department of Environmental Management or his or her duly
authorized agent or agents.
20.
"Drain" means to lower the surface water or groundwater elevation, either
temporarily or on a permanent basis.
21.
"Edge" means the line of intersection or division between:
a.
Any swamp, marsh, pond, bog, vernal pool or emergent and
submergent plant communities and its associated buffer zone; or
b.
Any flowing body of water and its associated buffer zone; or
c.
Any floodplain, area subject to flooding or area subject to storm
flowage and adjacent non-flooded or non-flowing areas.
d.
The edge shall be identified according to those procedures set forth
in § 2.21 of this Part.
22.
"Emergent plant community" means a freshwater wetland characterized
by erect, rooted, herbaceous hydrophytic vegetation that is present for
most of the growing season in most years, and that may be persistent or
non-persistent in nature.
23.
"Excavate" means to dig into, cut, quarry, uncover, remove, displace,
relocate, or grade any earth, soil, sand, gravel, rock, peat, organic,
inorganic or any other similar material.
24.
"Existing" means:
a.
A condition that was present as of the enactment of the Act (July
1971) or its applicable amendments and that has continually
remained in the same condition; or
b.
A condition that is present and was approved under the Act (July
1971) or its applicable amendments; or
c.
A condition that was present on the effective date of these Rules
that was in a previously non-regulated area and which is now,
pursuant to these Rules, a regulated area; or
d.
A condition that has naturally occurred and is currently present.
25.
"Facultative wildlife species" means wildlife that utilize freshwater
wetlands or buffers as habitat, but generally do not require freshwater
wetlands for survival or reproduction.
26.
"Farmer" means an individual, partnership or corporation that operates a
farm and has filed a Form 1040F or comparable instrument with the U.S.
Internal Revenue Service, has a State of Rhode Island farm tax number,
and has earned ten thousand dollars ($10,000.00) gross income on farm
products in each of the preceding four (4) years.
27.
"Feasible" means capable of being done, executed, accomplished or
brought about by engineering standards.
28.
"Fill" means dirt, soil, stones, gravel, sand, sediment, tree stumps, brush,
leaves, solid waste, debris, garbage, trash, grass clippings, pollutants, or
any other material, substance, or structure placed in a freshwater wetland,
buffer, floodplain, area subject to flooding or area subject to storm
flowage; or any action that places such material in a freshwater wetland,
buffer, floodplain, area subject to flooding or area subject to storm
flowage.
29.
"Floodplain" means as defined in R.I. Gen. Laws § 2-1-20(7), that land
area adjacent to a river or stream or other body of flowing water which is,
on the average, likely to be covered with flood waters resulting from a one
hundred (100) year frequency storm. A “one hundred (100) year frequency
storm” is one that is to be expected to be equaled or exceeded once in
one hundred (100) years; or may be said to have a one percent (1%)
probability of being equaled or exceeded in any given year.
30.
"Floodway" means the channel of a river or stream and any immediately
adjacent areas that must be kept free of encroachment to allow one
hundred (100) year flood waters to be carried without increase in flood
heights or flows and without endangering life or property.
31.
"Flowing body of water" means any river, stream, or intermittent stream
that flows long enough during the year to develop and maintain defined
channels, and generally has flowing water at times other than those
periods immediately following storm events. Such watercourses have
defined banks, a bed, and maintain visible evidence of flow or continued
reoccurrence of flowing water.
32.
"Freshwater wetlands" means, as consistent with R.I. Gen. Laws §
2-1-20(8), except as specified in R.I. Gen. Laws § 2-1-22(k), and includes,
but is not limited to:
a.
Those areas that are inundated or saturated by surface or
groundwater at a frequency and duration sufficient to support, and
that under normal circumstances do support a prevalence of
vegetation typically adapted for life in saturated soil conditions
including, but is not limited to, marshes, swamps, bogs, emergent
and submergent plant communities, rivers, streams, ponds, and
vernal pools or any combination thereof; or
b.
Any or all freshwater wetlands created as part of, or the result of,
any activity permitted or directed by the Department after July 16,
1971 including, but not limited to: restored freshwater wetlands;
value replacement freshwater wetlands created to compensate for
wetland loss such as floodplain excavations; and any freshwater
wetlands created, altered or modified after July 16, 1971.
33.
“Freshwater wetlands for farmers conducting normal farming and ranching
activities” means, pursuant to R.I. Gen. Laws § 2-1-22(k), for farmers
undertaking activities specified in R.I. Gen. Laws §§ 2-1-22(i)(1) and (2),
freshwater wetlands shall be defined as:
a.
Freshwater wetlands;
b.
Floodplains;
c.
Areas subject to storm flowage;
d.
Areas subject to flooding, as defined herein;
e.
The land area within two hundred feet (200’) of a flowing body of
water having a width of ten feet (10’) or more during normal flow;
f.
The area of land within one hundred feet (100’) of a flowing body of
water having a width of less than ten feet (10’) during normal flow;
and
g.
The area of land within fifty feet (50’) of a bog, marsh of one (1)
acre or greater, swamp of three (3) acres or greater and pond not
less than one quarter (1/4) acre in extent.
34.
"Freshwater wetlands in the vicinity of the coast" means, consistent with
the R.I. Gen. Laws § 46-23-6, freshwater wetlands and the associated
jurisdictional area, as defined within this Part, seaward of the jurisdictional
boundary that are regulated by the Coastal Resources Management
Council in accordance with the Rules and Regulations Governing the
Protection and Management of Freshwater Wetlands in the Vicinity of the
Coast (650-RICR-20-00-2).
35.
"Growing season" means the period from April 1st to November 15th of any
calendar year.
36.
"Hydrophyte" or "hydrophytic vegetation" means a plant or plant life that
grows in water, or in or on a substrate that is at least periodically deficient
in oxygen as a result of saturation or flooding by groundwater or surface
water.
37.
"Insignificant alteration" means in the opinion of the Department, a
proposed alteration, limited in scope, area or duration, which appears to
result in no more than a minimal change or modification to the
characteristics, functions or values of any freshwater wetland(s), buffer(s),
floodplain(s), area(s) subject to flooding or area(s) subject to storm
flowage and is not random, unnecessary or undesirable.
38.
"Invasive species" means an alien species whose introduction does or is
likely to cause economic or environmental harm, or harm to human health.
39.
“Jurisdictional area” means, pursuant to R.I. Gen. Laws § 2-1-20(9), the
following lands and waters, as defined within this Part, except as provided
for in R.I. Gen. Laws § 2-1-22(k), that shall be subject to regulation under
these Rules:
a.
Freshwater wetlands;
b.
Buffers;
c.
Floodplains;
d.
Areas subject to storm flowage;
e.
Areas subject to flooding; and
f.
Contiguous areas that extend outward:
(1)
Two hundred feet (200’) from the edge of a river or stream;
(2)
Two hundred feet (200’) from the edge of a drinking water
supply reservoir; and
(3)
One hundred feet (100’) from the edge of all other freshwater
wetlands.
40.
"Jurisdictional boundary" means the line determined by the Department
and the Coastal Resources Management Council, pursuant to R.I. Gen.
Laws § 46-23-6, that designates areas of freshwater wetland-related
authority as depicted on maps available by the Department (see § 2.22 of
this Part).
41.
"Lentic" means a habitat or ecosystem characterized by standing water.
42.
"Lotic" means a habitat or ecosystem characterized by flowing water.
43.
"Low-flow period" means under normal conditions, the period from July 1st
to October 31st of any calendar year.
44.
"Low hazard dam" means a dam where failure or misoperation results in
no probable loss of human life and low economic losses.
45.
"Marsh" means, consistent with R.I. Gen. Laws § 2-1-20(10), a place
wholly or partly within the State of Rhode Island where a vegetational
community shall exist in standing or running water during the growing
season and/or shall be made up of one (1) or more of, but not limited to
nor necessarily including all of the following plants or groups of plants:
hydrophytic reeds (Phragmites), grasses (Gramineae), mannagrasses
(Glyceria), cutgrasses (Leersia), pickerelweeds (Pontederiaceae), sedges
(Cyperaceae), rushes (Juncaceae), cattails (Typha), water plantains
(Alismataceae), burreeds (Sparganiaceae), pondweeds (Zosteraceae),
frog's bits (Hydrocharitaceae), arums (Araceae), duckweeds
(Lemnaceae), water lilies (Nymphaeaceae), water-milfoils (Haloragaceae),
water-starworts (Callitrichaceae), bladderworts (Utricularia), pipeworts
(Eriocaulon), sweet gale (Myrica gale), and buttonbush (Cephalanthus
occidentalis).
46.
"Mitigate" or "mitigation" means a process undertaken by single or
cumulative actions to avoid or lessen the damaging effects of human
activities upon freshwater wetlands and buffers and the functions and
values that they provide prior to, during, or after the completion of any
project or activity.
47.
"Near or at the surface" means, as defined in R.I. Gen. Laws § 2-1-20(11),
within eighteen inches (18”) of the surface.
48.
"Normal farming and ranching activities" means, consistent with R.I. Gen.
Laws § 2-1-22(i)(1), projects and activities carried out by farmers,
including plowing, seeding, cultivating, land clearing for routine agriculture
purposes, harvesting of agricultural products, pumping of existing farm
ponds for agricultural purposes, upland soil and water conservation
practices, and maintenance of existing farm drainage structures, existing
farm ponds and existing farm roads, and any other activity determined by
the Division of Agriculture to constitute a normal farming activity.
49.
"Obligate wildlife species" means wildlife that depend upon freshwater
wetlands for all or part of their life cycle.
50.
"Permit" means an authorization in the form of a document issued and
signed by the Department, allowing a project or activity subject to specific
terms and conditions in accordance with these Rules.
51.
"Person" means any individual; corporation; partnership; public utility;
nonprofit organization; trust; unincorporated association; Federal, State,
county or local government, or any agency or subdivision thereof; or any
other entity; or any combination of the foregoing.
52.
"Pollutant" means any dredged material; solid waste; incinerator residue;
sewage; garbage; sewage sludge; sediment; filter backwash; munitions;
chemical wastes; biological materials; radioactive materials; heat; wrecked
or discarded equipment; rock; sand; dirt; industrial or municipal or
agricultural wastes or effluent; petroleum or petroleum products including
but not limited to oil; or any material which will likely alter any one (1) or
more of the following: the aesthetic, physical, chemical, biological or
radiological characteristics or integrity of any freshwater wetland, buffer or
floodplain.
53.
"Pollution" means the human-made or human-induced alteration of the
aesthetic, physical, chemical, biological or radiological characteristics or
integrity of any freshwater wetland, buffer or floodplain as a result of the
introduction of any pollutant to any freshwater wetland, buffer or
floodplain.
54.
"Pond" means, consistent with R.I. Gen. Laws § 2-1-20(12), a place,
natural or manmade, wholly or partly within the State of Rhode Island,
where open standing or slowly moving water shall be present for at least
six (6) months a year. For the purpose of these Rules, ponds exclude
those places within the State of Rhode Island that meet the definition of
vernal pool.
55.
"Project" means planned or designed work or undertaking, and for the
purpose of the Rules, the term project also indicates activities.
56.
"Random, unnecessary, or undesirable alteration" means:
a.
A random alteration is any alteration to freshwater wetlands,
buffers, floodplains, areas subject to flooding or areas subject to
storm flowage for which the applicant does not specify in the
application the entire project proposed or contemplated by the
applicant or in which the purpose of the alteration cannot be
determined.
b.
An alteration is unnecessary unless it is essential, vital, or
indispensable to the project and cannot be avoided by exhausting
all other non-wetlands, buffers, floodplains, areas subject to
flooding or areas subject to storm flowage alternatives.
c.
An undesirable alteration is any alteration to freshwater wetlands,
buffers, floodplains, areas subject to flooding or areas subject to
storm flowage that individually or cumulatively may reduce or
degrade any functions and values as set forth herein, which does
not avoid and minimize to the maximum extent possible any
damaging effects on these functions and values, or does not satisfy
the review criteria in § 2.7.2 of this Part.
57.
"Rare" means when used in the context of species or freshwater wetland
types, those invertebrate and vertebrate animals or plant species or those
freshwater wetland types that are listed as threatened, endangered, of
special interest or of special concern by the Department or under the
Federal Endangered Species Act, 16 U.S.C. § 1531 et. seq. For the
purpose of these Rules bogs, fens, Atlantic white cedar swamps,
floodplain forests and freshwater pond shores with coastal plain species
are considered rare freshwater wetlands in Rhode Island.
58.
"Recreational activities" means activities that include, but are not limited
to, the following: education or nature studies, hunting, fishing, boating,
canoeing, camping, trapping, water-skiing, swimming, ice skating, hiking,
bird watching or other wildlife observations, photography, cross-country
skiing, harvesting of natural foods or plant materials, and visual/esthetic
appreciation of natural environments as a whole or in part.
59.
"Restoration" means the result of actions that, in the opinion of the
Department, reinstate or will reinstate, insofar as possible, the functions
and values of a freshwater wetland, buffer, floodplain, area subject to
flooding or area subject to storm flowage that has been altered.
60.
"River" means, as defined in R.I. Gen. Laws § 2-1-20(13), a body of water
that is designated as a perennial stream by the United States Department
of Interior Geologic Survey on 7.5-minute series topographic maps, and
that is not a pond as defined in this Part.
61.
"Rules" means these Rules and Regulations, 250-RICR-150-15-2, which
govern the administration and enforcement of the Act. Unless otherwise
expressly stated, any reference herein to the Rules incorporates the
relevant provisions of the Act.
62.
"Sediment" means any organic or inorganic material that is in suspension,
has been deposited, is being transported, or has been moved from its site
of origin by natural or human action.
63.
"Selective cut/cutting" means the cutting of trees, or the mowing or cutting
of shrubs or emergent vegetation which would result in:
a.
At least sixty percent (60%) stocking of trees remaining in any
forested wetland. Stocking shall be based upon the applicable
northeastern tree stocking guide for the dominant tree type within
the forested wetland;
b.
At least seventy-five percent (75%) crown cover of shrubs
remaining within any shrub or forested wetland;
c.
At least eighty percent (80%) cover remaining in any emergent
community.
64.
“Setback” means, pursuant to R.I. Gen. Laws § 2-1-20(14), the minimum
distance from the edge of a freshwater wetland at which an approved
activity or alteration may take place.
65.
"Significant alteration" means in the opinion of the Department, a
proposed project which by its area, scope or duration, appears to
represent more than a minimal change or modification to the
characteristics, functions or values of any freshwater wetland(s), buffer(s),
floodplains(s), area(s) subject to flooding or area(s) subject to storm
flowage; may be detrimental to the basic natural capabilities or values
associated with any freshwater wetland(s), buffer(s), floodplain(s), area(s)
subject to flooding or area(s) subject to storm flowage; or appears to be
random, unnecessary or undesirable.
66.
"Standing water" means non-flowing water of any depth inundating the
ground surface.
67.
"Stream" means any flowing body of water or watercourse other than a
river that flows long enough each year to develop and maintain a channel
and that may carry groundwater discharge or surface runoff. Such
watercourses may not have flowing water during extended dry periods but
may contain isolated pools or standing water.
68.
"Submergent plant community" means a freshwater wetland characterized
by plants that grow principally below the surface of the water for most of
the growing season. Submergent plants are either attached to the
substrate or float freely in the water.
69.
"Substantial alteration of a dam" means, consistent with the Rules and
Regulations for Dam Safety, Part 130-05-1 of this Title, any physical
modification to a dam that results in a permanent change in the water
elevation of the reservoir or impoundment or in water flow downstream of
the dam.
70.
"Surface water" means water inundating the substrate or soil surface,
regardless of depth.
71.
"Swamp" means, consistent with R.I. Gen. Laws § 2-1-20(16), a place
wholly or partly within the State of Rhode Island where groundwater shall
be near or at the surface of the ground for a significant part of the growing
season, or where runoff water from surface drainage shall collect
frequently, and/or where a vegetational community shall be made up of a
significant portion of one (1) or more of, but not limited to nor necessarily
including all of the following: red maple (Acer rubrum), elm (Ulmus
americana), black spruce (Picea mariana), white cedar (Chamaecyparis
thyoides), ashes (Fraxinus), poison sumac (Rhus vernix), larch (Larix
laricina), spice bush (Lindera benzoin), alders (Alnus), skunk cabbage
(Symplocarpus foetidus), hellebore (Veratrum viride), hemlock (Tsuga
canadensis), sphagnums (Sphagnum), azaleas (Rhododendron), black
alder (Ilex verticillata), coast pepperbush (Clethra alnifolia), marsh
marigold (Caltha palustris), blueberries (Vaccinium), buttonbush
(Cephalanthus occidentalis), willow (Salicaceae), water willow (Decodon
verticillatus), tupelo (Nyssa sylvatica), laurels (Kalmia), swamp white oak
(Quercus bicolor), or species indicative of marsh. For purposes of this
definition, “significant part of the growing season” means that period of the
growing season when water is present long enough to support a plant
community of predominantly hydrophytic vegetation.
72.
"Terms and conditions" means any requirements specified by the
Department which it deems necessary to prevent any authorized or
permitted project or activity from reducing the functions and values
associated with any freshwater wetland, buffer, floodplain, area subject to
flooding or area subject to storm flowage; prevent any significant alteration
which is not authorized; prevent the destruction of any freshwater wetland,
buffer, floodplain, area subject to flooding or area subject to storm flowage
or portion thereof; or protect the health, welfare, and general well-being of
the public.
73.
“Undeveloped vegetated land” means an area of land that does not
consist of buildings, impervious surfaces, bare gravel, lawn or landscaped
areas.
74.
“Undue hardship” means an inappropriate, unsuitable, unlawful, or
excessive standard or requirement levied upon an applicant. This does not
include economic diminution in value.
75.
"Utility" means any electricity, water, sewer, gas, oil or communication
transmission line or pipe.
76.
“Vernal pool” means, pursuant to R.I. Gen. Laws § 2-1-20(17), a
depressional wetland basin that typically goes dry in most years and may
contain inlets or outlets, typically of intermittent flow. Vernal pools range in
both size and depth depending upon landscape position and parent
materials. Vernal pools usually support one (1) or more of the following
obligate indicator species: wood frog (Lithobates sylvaticus), spotted
salamander (Ambystoma maculatum), marbled salamander (Ambystoma
opacum), and fairy shrimp (Eubranchipus spp.) and typically precludes
sustainable populations of predatory fish.
77.
"Water quality improvement project" means a project whose sole purpose
is to eliminate or minimize conditions that cause or contribute to water
quality degradation.
78.
"Width during normal flow" means the distance between the opposite
edges of the flow channel of a river or stream as determined by the criteria
set forth in § 2.21.5 of this Part.
79.
"Wildlife" means any vertebrate or invertebrate animal species which may
reproduce in, rest in, feed in, or otherwise utilize any freshwater wetland or
buffer regulated by these Rules.
80.
"Wildlife habitat" means those freshwater wetlands or buffers that provide
breeding, nursery, resting, travel or feeding areas for birds, fish, reptiles,
mammals, amphibians, or invertebrates, as well as the biotic and abiotic
characteristics of freshwater wetlands or buffers that may provide food,
cover, breeding sites, or other support systems for these life forms.
81.
"Wildlife habitat project" means a project whose sole purpose is to create,
restore or enhance wildlife habitat.
2.5
Applicability and Regulated Activities
2.5.1 General Applicability to Freshwater Wetlands
A.
These Rules apply to all freshwater wetlands of the State and other jurisdictional
area, as defined herein, except as provided for in §§ 2.5.3 and 2.5.4 of this Part.
B.
For the purpose of these Rules, the following features are not considered
freshwater wetlands or freshwater wetlands for farmers conducting normal
farming or ranching activities:
1.
Bermed spill containment areas;
2.
Commercial or industrial ponds created for the purpose of providing
cooling water;
3.
Concrete or poly-lined ponds;
4.
Construction dewatering basins;
5.
Ditches which are stormwater channels that do not flow into, flow out of, or
connect freshwater wetlands;
6.
Ornamental or reflecting pools that are lined and were not created in
freshwater wetlands;
7.
Puddles which are small, shallow pools of water that form temporarily on
pavement or uplands during or immediately after a precipitation event, and
that do not contain hydrophytic vegetation or hydric soil typical of
freshwater wetlands and do not meet the definition of vernal pool;
8.
Stormwater control features excavated, constructed or installed to convey,
store, or treat stormwater runoff, including detention basins, retention
basins, bio-retention basins, bio-filtration areas, rain gardens, and wet
vegetated treatment systems;
9.
Wash ponds created for, and that have been in continuous use as part of,
an existing or approved mining operation;
10.
Lagoons created for the purpose of wastewater treatment; and
11.
Ponds created for the purpose of recycling wastewater.
C.
Notwithstanding § 2.5.1(B) of this Part, a freshwater wetland permit may be
required for construction, modification or removal of any such feature that is
located within a jurisdictional area specified in § 2.5.2 of this Part.
2.5.2 Jurisdictional Area
These Rules establish the jurisdictional area in which projects and activities are
subject to regulation by the Department. Jurisdictional area includes freshwater
wetlands, buffers, floodplains, areas subject to storm flowage, areas subject to
flooding, and contiguous areas that extend outward two hundred feet (200’) from
the edge of a river or stream, two hundred feet (200’) from the edge of a drinking
water supply reservoir, and one hundred feet (100’) from the edge of all other
freshwater wetlands, except as otherwise provided for in R.I. Gen. Laws §
2-1-22(k) for farmers conducting normal farming and ranching activities.
2.5.3 Freshwater Wetlands in the Vicinity of the Coast
A.
The Freshwater Wetlands Jurisdictional Boundary map (§ 2.22 of this Part) that
depicts the jurisdictional boundary between freshwater wetlands and freshwater
wetlands in the vicinity of the coast is available for review at the Department and
on the Department website. Freshwater wetlands in the vicinity of the coast are
under the exclusive jurisdiction of the Rhode Island Coastal Resources
Management Council (CRMC), with these exceptions:
1.
The Department shall retain authority over farming-related projects and
activities undertaken by farmers, as defined herein, involving freshwater
wetlands in the vicinity of the coast.
2.
The Department shall retain authority over any permits issued prior to
January 1, 2002, that are the subject of an outstanding compliance order
or other formal administrative, civil or criminal legal action initiated by the
Department for the purpose of litigating or settling that action.
3.
The Department shall retain authority over any permits or permit
applications acted upon by the Department prior to January 1, 2002, to
permit the Department to defend or settle any legal proceedings brought
against it as a result of those actions.
4.
Any compliance order issued or other civil or criminal enforcement action
taken by the Department prior to August 18, 1999, shall continue to be
subject to the Department's authority and to be governed by the Rules and
Regulations in effect at the time the order was issued or action taken.
5.
Permits issued by the Department for projects that lie on or that straddle
the jurisdictional boundary shall be administered by the Department in
accordance with § 2.5.4 of this Part.
B.
Projects and activities located within the DEM freshwater wetlands jurisdiction
that are located within the boundary of the CRMC Narrow River Special Area
Management Plan (650-RICR-20-00-4) or the Salt Pond Region Special Area
Management Plan (650-RICR-20-00-3), and which constitute a watershed
activity, as defined within the Special Area Management Plan, may be subject to
CRMC requirements for larger buffers or setbacks.
2.5.4 Projects that Lie on or Cross the Jurisdictional Boundary
A.
Applications for linear projects such as road or utility rights of way lying on the
jurisdictional boundary will be reviewed as follows:
1.
If the project is located entirely or partially either within the CRMC Narrow
River Special Area Management Plan (650-RICR-20-00-4) or Salt Pond
Region Special Area Management Plan (650-RICR-20-00-3), or within two
hundred feet (200’) of a coastal or shoreline feature, as defined by CRMC,
then CRMC shall be the freshwater review agency.
2.
If the project is located entirely outside of the CRMC Narrow River Special
Area Management Plan (650-RICR-20-00-4) or Salt Pond Region Special
Area Management Plan (650-RICR-20-00-3) and beyond two hundred feet
(200’) of a coastal or shoreline feature, as defined by CRMC, then the
Department shall be the freshwater review agency.
B.
Applications for projects that cross or fall on both sides of the jurisdictional
boundary will be reviewed as follows:
1.
If the jurisdictional area is located seaward of the jurisdictional boundary,
then CRMC shall be the reviewing agency.
2.
If the jurisdictional area is located inland of the jurisdictional boundary,
then the Department shall be the reviewing agency.
3.
If the jurisdictional area lies on both sides of the jurisdictional boundary
and the project is non-linear in character, then:
a.
Where the project is located entirely or partially either within the
CRMC Narrow River Special Area Management Plan (650-
RICR-20-00-4) or Salt Pond Region Special Area Management
Plan (650-RICR-20-00-3), or within two hundred feet (200’) of a
coastal or shoreline feature, as defined by CRMC, then CRMC shall
be the reviewing agency; or
b.
Where the project is entirely outside of the Narrow River Special
Area Management Plan (650-RICR-20-00-4) or Salt Pond Region
Special Area Management Plan (650-RICR-20-00-3) and is beyond
two hundred feet (200’) of a coastal or shoreline feature, as defined
by CRMC, then the Department shall be the reviewing agency.
4.
For linear projects that are on both sides of the jurisdictional boundary, the
Department and CRMC shall jointly determine which agency will serve as
the reviewing agency. This determination shall be made on a case-by-
case basis in response to a written request from an applicant to CRMC,
and be based on the following: the extent and location of the jurisdictional
area, the area and proximity of potential land disturbance, and the
guidelines set forth in any applicable watershed plan. Within ten (10)
business days of the receipt of a request for clarification from an applicant,
the agency that retains jurisdiction shall so inform the applicant. Upon
written notice to the applicant, the agency may extend the ten (10) day
deadline for up to an additional ten (10) business days for any reason.
Although the goal of these provisions is to promote the designation of a
single review agency, in the event that a project includes potential
freshwater wetland, buffer or floodplain alterations on both sides of the
jurisdictional boundary, the Department and CRMC reserve the right to
jointly exercise their authority.
C.
The permitting agency for a project that is on the jurisdictional boundary or on
both sides of the jurisdictional boundary shall renew, modify, transfer and enforce
the permit in accordance with the applicable agency Rules and Regulations that
were in effect at the time the permit was issued.
2.5.5 Prohibitions
A.
Except as provided in § 2.6 of this Part, no person may excavate; drain; fill; place
trash, garbage, sewage, road runoff, drainage ditch effluents, earth, rock, borrow,
gravel, sand, clay, peat, or other materials or effluents upon; divert water flows
into or out of; dike; dam; divert; clear; grade; construct in; add to or take from or
otherwise alter the character of any freshwater wetland, buffer, floodplain, area
subject to flooding or area subject to storm flowage in any way, without first
obtaining the approval from the Department; or
B.
Undertake any project or activity within a jurisdictional area, that may alter the
character of the freshwater wetland, buffer or floodplain without first obtaining the
approval from the Department.
2.5.6 Regulatory Applicability
A.
Projects or activities within a jurisdictional area that may alter freshwater
wetlands, buffers, floodplains, areas subject to flooding or areas subject to storm
flowage are subject to regulation and are required to obtain approval from the
Director in accordance with these Rules. Certain limited activities are exempt in
accordance with § 2.6 of this Part.
B.
Projects or activities as specified in §§ 2.5.6(B)(1) through (3) of this Part that are
proposed outside of a jurisdictional area which in all likelihood, because of their
close proximity to freshwater wetlands or buffers, or because the size or nature
of the project or activity will result in an alteration of the natural character of any
freshwater wetland or buffer, may not be undertaken without approval from the
Department in accordance with these Rules. Such projects or activities generally
are those that will:
1.
Result in a change to the normal surface run-off characteristics which
increases the rate or volume of water flowing into, or draining or diverting
water away from, freshwater wetlands or buffers. For any such project or
activity that involves land disturbance of one (1) acre or more of land area,
approval may be obtained under the Department’s General Permit for
Stormwater Discharge Associated with Construction Activity without a
separate application to the Freshwater Wetlands Program.
2.
Result in diversion of groundwater into or away from freshwater wetlands
or buffers.
3.
Result in a modification to the quality of water reaching freshwater
wetlands or buffers which could alter their natural character.
C.
No project or activity that may or will alter a freshwater wetland, buffer, floodplain,
area subject to flooding or area subject to storm flowage may be undertaken
unless it conforms at all times to all applicable permits and permit terms and
conditions, and all representations made in all applicable permit applications.
2.5.7 Applicability to Farming and Ranching Activities
A.
Normal farming and ranching activities conducted by a farmer, as defined herein,
may be carried out in accordance with the provisions of § 2.13.3 of this Part.
B.
The construction of new farm ponds, new drainage structures and new farm
roads by a farmer, as defined herein, are subject to the provisions of § 2.13.4 of
this Part.
C.
Normal farming and ranching activities conducted within a jurisdictional area
specified in § 2.5.2 of this Part by persons that do not meet the definition of
farmer, as defined herein, shall be regulated in accordance with these Rules,
including the permitting provisions of §§ 2.7 through 2.14 of this Part. Certain
activities may be exempt in accordance with § 2.6.11 of this Part or deemed to
be an existing condition in accordance with the definition of existing in §
2.4(A)(24) of this Part.
D.
The construction of new farm ponds, new drainage structures and new farm
roads within a jurisdictional area specified in § 2.5.2 of this Part, by persons that
do not meet the definition of farmer, as defined herein, shall be regulated in
accordance with these Rules, including the permitting provisions in §§ 2.7
through 2.14 of this Part.
E.
Except as provided for in §§ 2.5.7(A) through (D) of this Part, proposed projects
involving the construction of buildings, other structures or site improvements on
property utilized for farming and ranching, within a jurisdictional area specified in
§ 2.5.2 of this Part or in other locations that may result in alteration of freshwater
wetlands, buffers or floodplains are regulated in accordance with these Rules,
including the permitting provisions in §§ 2.7 through 2.14 of this Part.
2.5.8 Existing Conditions
A.
The continued existing use of property located within a jurisdictional area as
established by these Rules is not affected, provided the use conforms to the
definition of existing in § 2.4(A)(24) of this Part, and provided such condition or
activity does not otherwise constitute a violation of these Rules.
B.
These Rules shall be liberally construed to permit the Department to effectuate
the purposes of the Act.
2.6
Exempt Activities
2.6.1 General Conditions for Exempt Activities
A.
This Rule describes certain limited activities within a jurisdictional area that may
proceed without a written permit from the Department, subject to the conditions
and restrictions set forth below. The Department strongly recommends that all
such exempt activities or projects occur as far away from freshwater wetlands as
possible.
B.
Nothing in § 2.6 of this Part shall be deemed to:
1.
Limit or reduce, in any way, the Department's authority over freshwater
wetlands or jurisdictional area; or
2.
Supersede any current terms or conditions of any permit, or
3.
Interfere with the Department’s ability to make a determination or decision
on an application, or
4.
Impose terms and conditions on any permit, enforcement action or
Consent Agreement.
C.
Any activities within a jurisdictional area not described within this Rule that could
alter the character of any freshwater wetlands, buffers or floodplains require a
written permit.
D.
Nothing in § 2.6 of this Part shall preclude the Department from initiating an
enforcement action in the event of any failure to undertake exempt activities in
accordance with the requirements and conditions set forth herein.
E.
The following general restrictions apply to all activities performed under § 2.6 of
this Part:
1.
Exempted activities do not obviate the need to obtain other applicable
Federal, State, or local permits, approvals, or authorizations required by
law;
2.
Any structure or fill exempt under § 2.6 of this Part shall be properly
maintained to ensure public safety, and to protect freshwater wetland
functions and values;
3.
Best management practices for erosion and sediment controls must be
used and maintained in effective operating condition during the activity,
and all exposed soil and other fills must be permanently stabilized at the
earliest possible date. (See Stormwater Management, Design and
Installation Rules, § 10-8.16 of this Chapter.);
4.
No activity exempted herein may jeopardize the continued existence of a
rare freshwater wetland type, or a rare species; likewise, no activity
exempted herein may destroy or adversely modify the critical habitat of
such species;
5.
Exempt activities shall be undertaken and performed in a manner that
prevents the introduction or spread of invasive species, and all vehicles
and equipment used in freshwater wetlands, including rivers, streams and
ponds, shall be routinely inspected and cleaned of all invasive plant
material;
6.
Following the limited activity, all equipment used in installation or
maintenance activities shall be removed from any freshwater wetland and
any created access paths must be restored and allowed to naturally
revegetate; and
7.
All freshwater wetland functions and values must be protected to the
maximum extent possible so as to prevent pollutants, direct discharge of
stormwater runoff, or any material foreign to a freshwater wetland or
hazardous to life, from entering any freshwater wetland, buffer or
floodplain so as to be protective of aquatic life and not result in long-term
reductions in stream flow or increased flooding. Hydrodemolition of
concrete structures within or adjacent to freshwater wetlands is not
authorized for any exempt activity in this Rule.
2.6.2 Limited Cutting of Vegetation
A.
Limited cutting of vegetation within a jurisdictional area is allowed in accordance
with § 2.6.1 of this Part only when:
1.
The cutting or maintenance of vegetation is within existing or approved
lawn or landscaped areas, consistent with any limit of disturbance
specified in a permit or a consent agreement where applicable; or
2.
The cutting is to remove tree limbs or dead, diseased, leaning or
overhanging trees or shrubs which, if left unattended, pose a threat to
individuals, dwellings, structures, or safe vehicle movement over roads
and driveways; or
3.
The cutting is for purposes of trimming back and removing grasses,
weeds, or shrubs encroaching upon existing or approved limits of
disturbance, landscaped areas, fields, pastures or recreational areas,
provided that the cutting is not taking place in an area designated to be
planted, revegetated, or set aside to revert to a natural wild state for any
mitigation or restoration purposes as a result of any term and condition of
any permit, approval, enforcement action issued by the Department, or
any Consent Agreement entered with the Department; or
4.
The cutting is for obtaining firewood for non-commercial, individual use, is
selective in nature, and ensures the long-term protection and stability of
the forested habitat. The use of any motorized vehicle(s) for this purpose
in any freshwater wetland is prohibited; or
5.
The cutting is selective, and is carried out under the supervision of and in
cooperation with the Department’s Division of Forest Environment and:
a.
For non-emergency forest operations and management practices
the following conditions are met:
(1)
The property owner, in cooperation with the Division of
Forest Environment, notifies the Freshwater Wetlands
Program that a notice of intent to cut, or an approved written
management plan submitted under the Farm, Forest and
Open Space Act, R.I. Gen. Laws Chapter 44-27, an
approved USDA NRCS Forest Management Plan or the
Rhode Island Forest Stewardship Program is on file with the
Division of Forest Environment; and
(2)
The cutting operation proceeds under those best
management practices developed and approved by the
Division of Forest Environment; and
(3)
The cutting operation results in no permanent degradation or
loss of any wildlife habitat associated with any freshwater
wetland or buffer; and
(4)
Equipment crossings of watercourses are limited to areas
subject to storm flowage or streams or a river less than ten
feet (10’) wide through the use of temporary bridges or other
protective structures authorized by the Division of Forest
Environment. This temporary crossing must not restrict
natural flow patterns and wildlife movements, and must be
removed immediately following the harvesting operation.
Disturbed jurisdictional areas in the vicinity of any equipment
crossings must be stabilized, revegetated, and restored to a
natural condition; and
(5)
Best management practices for erosion and sediment control
are followed throughout the life of the project (see
Stormwater Management, Design and Installation Rules, §
10-8.16 of this Chapter); or
b.
For forest operation and management practices in response to an
event-specific emergency, such as a wind or ice storm, a wildfire, or
a pest outbreak, the following conditions are met:
(1)
Prior to the removal of any slash or woody debris from any
jurisdictional area, the property owner notifies the Division of
Forest Environment and receives a written confirmation that
a non-silviculture emergency event has occurred; and
(2)
The cutting operation proceeds under those best
management practices developed and approved by the
Division of Forest Environment; and
(3)
The cutting operation results in no additional or permanent
degradation or loss of any wildlife habitat associated with
any freshwater wetland; and
(4)
Equipment crossings of watercourses are limited to areas
subject to storm flowage, streams or rivers less than ten (10)
feet wide through the use of temporary bridges or other
protective structures authorized by the Division of Forest
Environment. This temporary crossing must not restrict
natural flow patterns and wildlife movements, and must be
removed immediately following the harvesting operation.
Disturbed jurisdictional areas in the vicinity of any equipment
crossings must be stabilized, revegetated, and restored to a
natural condition; and
(5)
Best management practices for erosion and sediment control
are followed throughout the life of the project. (See
Stormwater Management, Design and Installation Rules, §
10-8.16 of this Chapter.)
6.
The cutting is for the maintenance of existing or approved footpaths or
pedestrian trails; or for the maintenance of existing or approved cleared
areas immediately along, but no greater than ten feet (10’) from, the edges
of driveways and access roads for vehicle safety and access; or
7.
The cutting is within existing or approved, cleared utility rights-of-way and
is restricted to only that necessary to maintain integrity of the utility line or
pipe itself and to maintain access for maintenance, inspection or repair of
poles, structures and equipment within the right-of-way; or
8.
The cutting is on or along property lines for survey purposes or is on an
established transect line to allow for access on foot when conducting
environmental assessments, and is no greater than five feet (5’) in width;
or
9.
Removal of any floating or submergent plants or cutting of common reed
(Phragmites australis) is limited to that area immediately adjacent to, but
no more than fifteen feet (15’) from, existing or approved docks; boat
ramps; beaches; or swimming areas. The clearing or removal of such
vegetation is accomplished only through the manual use of hand-held
implements; or
10.
The cutting is restricted to existing drainage ditches, swales, or
embankments of stormwater best management practices as a normal
maintenance activity; or
11.
The cutting is performed to remove individual trees or portions thereof that
have fallen over or into rivers normally accessible by canoes, kayaks, or
boats; or
12.
The cutting of trees or shrubs within a floodplain that is located outside of
all freshwater wetlands and their contiguous one hundred foot (100’) or
two hundred foot (200’) jurisdictional area; or
13.
The cutting is for continued routine maintenance of a Department-
approved landfill or site remediation cap.
2.6.3 Limited Maintenance and Repair Activities
A.
Limited repair and maintenance of an existing structure located in a jurisdictional
area is allowed under § 2.6.1 of this Part as specifically provided below, so long
as the repair or maintenance does not increase the size of the structure vertically
or horizontally. Some limited structural changes also may be exempt, as
specifically provided below. For purposes of § 2.6.3 of this Part, repair and
maintenance is limited to routine activities necessary to ensure the upkeep of
structures built in accordance with all necessary Federal, State and local permits.
1.
Normal maintenance of existing or approved structures and accessory
structures to maintain their integrity and condition; or
2.
Replacement of functional drainage structures, provided that:
a.
Culverts of more than fifty feet (50’) are the same size, length,
capacity and invert elevation as the present structure;
b.
Culverts of fifty feet (50’) or less maintain the same slope, a
nominally equivalent cross-sectional area and the same invert
elevation as the present structure with no more than five foot (5’)
extensions in length on either end;
c.
The project or activity does not result in sediment transport to
freshwater wetlands or buffers or result in any filling, draining, or
impoundment of freshwater wetlands, buffers or floodplains beyond
what was approved or existing; and
d.
The property owner maintains site plans that detail the condition of
the drainage structure as it existed prior to replacement. A riprap
scour pad not greater than ten feet (10’) in length may be placed at
the culvert outfall if an erosion problem is evident, provided that the
access for fish and wildlife is not impeded; or
3.
Cleaning of drainage pipes, culverts, catch basins, manholes, drainage
swales, and removal of accumulated sediment within ten feet (10’) of the
inlet or outlet, provided there is no disturbance to the original soil
substrate. For purposes of § 2.6.3(A)(3) of this Part, a drainage swale is a
conveyance that facilitates the drainage of stormwater from paved or
disturbed areas, but does not meet the definition of river or stream; or
4.
Repaving of, or undertaking normal roadway maintenance of, paved public
and private roadways, bikeways or footpaths, provided there is no
expansion of these facilities. Normal roadway maintenance includes:
resurfacing or in-place recycling of paved surfaces; repairs to, resetting or
replacing curbs, berms, sidewalks or guardrails; addition of guardrails,
signing, striping or signals; adjusting manholes, catch basins or utility
structures to grade; structural repairs to, or in-place replacement of
manholes, catch basins or grates; and installation of wheel chair ramps in
existing sidewalks. Paving or oiling of dirt roads, however, is considered
an alteration which requires a permit; or
5.
Repair to or maintenance of a stream crossing, such as a stone ford and
its approach, or any unpaved road which is used at least on an annual
basis, provided that any increase in road surface cover does not require
the expansion of any slopes further into the freshwater wetland, buffer or
floodplain beyond the present toe of slope and provided that any increase
in height does not exceed two inches (2”). Repair or maintenance to any
stream crossing and its approach must be done during low or no flow
periods; or
6.
Repair of docks and footbridges. This does not include enlargements or
extensions; or
7.
Repair to boat ramps which does not include enlargements; or
8.
Repair to any bridge or culvert, including repair of cracks and spalling;
sealing of joints; repointing of masonry; replacement of decking with no
replacement of other structural members or increase in the deck width;
repairs to or replacement of signage, railings, or lighting; and painting
provided that:
a.
The repair does not require vehicular equipment access beyond the
existing road surface;
b.
No permanent changes will occur in streambed geometry or
hydraulic capacities;
c.
All cleared or disturbed areas are allowed to revegetate;
d.
Temporary cofferdams are limited to placement of sandbag/liner
cofferdams or similar structures that allow for unhindered flow in the
remaining channel and do not require disturbance of the substrate
of any freshwater wetland or watercourse; and
e.
Provided that any material removed from the structure during repair
is disposed of properly; or
9.
Removal of manmade trash from a jurisdictional area that is not within a
freshwater wetland or buffer is exempt. Removal of manmade trash from
freshwater wetlands, buffers or floodplains without causing any change in
their profile or general character is also exempt, provided that the removal
must be performed manually, or by equipment when chains or cables can
be attached to the item to be removed and the equipment can be operated
from a road, parking area, or other similar location. Removal of natural
material such as logs, brush, or trees from freshwater wetlands, including
flowing bodies of water or from buffers must be limited to problem
locations where lack of removal will result in erosion or blockage of
culverts, obstruction of existing paths, or prevention of canoeing access;
or
10.
Repair to or in-place replacement of shoreline stabilization structures such
as stone or masonry walls, provided that there is no change in the
dimension or location of the structure and no material is placed in any
location or in any manner that would impair surface water flow, and no
material is placed in a manner such that it will be eroded by normal or
expected high surface water flows; or
11.
Maintenance of soil erosion and sediment control management practices
and stormwater management practices in accordance with a plan
approved by the Department; or
12.
Maintenance of existing or approved bathing beach that does not expand
or otherwise change the size or shape of the beach; or
13.
Inspection, maintenance and repair to those utility poles, structures,
equipment or underground lines or pipes which are necessary to provide
utility services to the public; or
14.
Replacement of utility poles, including changes in physical size, without
any change to existing or approved cleared rights-of-way; or
15.
Repair and replacement of utility lines attached to existing or approved
bridges or in existing or approved roadways and railway beds provided
anti-seepage collars are used as appropriate to prevent sub-draining
effects on freshwater wetlands; or
16.
Maintenance by municipalities of surface water impoundments used for
drinking water supplies, provided that all maintenance activities occur
within the existing boundary perimeters of the impoundment and that the
municipality provide the Department with twenty (20) days advance written
notice of such maintenance activity in accordance with R.I. Gen. Laws §
2-1-21(a); or
17.
Repair and replacement of wells and their supply lines, provided that the
following conditions are met:
a.
All cleared vegetation is allowed to re-grow naturally;
b.
The volume of withdrawal from the replacement well is no greater
than five hundred (500) gallons per day;
c.
The repair/replacement well will service the same lot as its
predecessor;
d.
No other feasible upland alternative is available; and
e.
All freshwater wetlands and buffer disturbance is limited to the
maximum extent possible; or
18.
Repair of failed onsite wastewater treatment system (OWTS), made in
accordance with the Rules Establishing Minimum Standards Relating to
Location, Design, Construction and Maintenance of Onsite Wastewater
Treatment Systems, Subchapter 10 Part 6 of this Chapter; or
19.
In-kind replacement of existing or approved buildings and constructed
accessory structures if destroyed by fire or natural causes; or
20.
Repaving or undertaking normal maintenance of existing parking lots
where any pavement removal exposing erodible soils is less than ten
thousand square feet (10,000’) in area; or
21.
Repair, replacement or installation of gates, boulders, logs or other
physical barriers intended to limit unauthorized vehicular access to
existing or approved driveways or access roads, provided that the
following conditions are met:
a.
Such barriers extend along or beyond the edge of the access road
no farther than necessary to limit vehicular access; and
b.
No structural or material barriers are placed in freshwater wetlands.
2.6.4 Demolition of Buildings or Accessory Structures
A.
Demolition of buildings, parking areas or accessory structures is allowed within a
jurisdictional area in accordance with § 2.6.1 of this Part only where:
1.
The demolition of a building, parking area or accessory structure is not
associated with new construction on the same property;
2.
All material is properly disposed of in accordance with all State laws and
Rules, and the material is not disposed of or stockpiled in any freshwater
wetlands, buffers, floodplains, areas subject to flooding, areas subject to
storm flowage or setbacks;
3.
All pre-demolition grades are restored and all disturbed soils are
stabilized;
4.
Clean fill is used, where foundation holes or cellars of demolished
buildings are to be filled;
5.
All rubble and demolition debris are removed from the soil surface when
demolition is complete;
6.
Demolition activity and equipment operation are maintained within existing
or approved disturbed areas on the property; and
7.
All disturbed soils are loamed and seeded.
2.6.5 Single-Family Residences and Accessory Structures
A.
The following limited changes to existing or approved single family residences
and accessory structures within a jurisdictional area are exempt in accordance
with § 2.6.1 of this Part provided that: no freshwater wetlands or buffers are
altered or artificially illuminated; all construction activity is located within existing
or approved cleared areas, such as parking areas, lawns or cultivated fields; and
all construction activity is located outside of floodplains, areas subject to flooding
or areas subject to storm flowage, and is at least twenty-five feet (25’) from any
pond, marsh, or swamp, and is at least fifty feet (50’) from any flowing body of
water, bog or vernal pool:
1.
Horizontal addition, such as a family room, bedroom, attached garage, or
house wing, that is less than or equal to six hundred square feet (600’) in
footprint;
2.
Vertical addition of no more than two (2) stories;
3.
Attached deck, enclosed porch, exterior ramp, or patio less than or equal
to six hundred square feet (600’) in footprint;
4.
Stand-alone garage, shed, or greenhouse less than or equal to six
hundred square feet (600’) in footprint;
5.
Pervious driveway less than or equal to six hundred square feet (600’);
6.
Alteration to an onsite wastewater treatment system (OWTS) approved in
accordance with the Rules Establishing Minimum Standards Relating to
Location, Design, Construction and Maintenance of Onsite Wastewater
Treatment Systems, Subchapter 10 Part 6 of this Chapter;
7.
Installation of outlets for French drains, subdrains, or sump pumps is
permissible within a jurisdictional area provided that the discharge outlets
are located outside of any freshwater wetlands or buffer; or
8.
Other accessory structures, including rain gardens or infiltration structures
for roof drains and other stormwater management practices, except as
limited in §§ 2.6.5(A)(1) through (7) of this Part.
2.6.6 Non-Residential Buildings or Multifamily Residences and Accessory
Structures
A.
The following limited changes to existing or approved non-residential buildings or
multifamily residences and accessory structures within a jurisdictional area are
exempt in accordance with § 2.6.1 of this Part provided that: no freshwater
wetlands or buffers are altered or artificially illuminated; all construction activity is
located within existing or approved cleared areas, such as parking areas, lawns
or cultivated fields; and all construction activity is located outside of floodplains,
areas subject to flooding or areas subject to storm flowage and is at least twenty-
five feet (25’) from any pond, marsh, or swamp and is at least fifty feet (50’) from
any flowing body of water, bog or vernal pool:
1.
Horizontal addition with less than or equal to a six hundred square foot
(600’) footprint;
2.
Vertical addition limited to no more than two (2) stories;
3.
The foundation and enclosure is limited, per lot, to storage coolers,
dumpsters, equipment sheds, or garages, each of which is less than or
equal to six hundred square feet (600’) in footprint;
4.
Attached exterior ramp; or
5.
Alteration to an onsite wastewater treatment system (OWTS) approved in
accordance with the Rules Establishing Minimum Standards Relating to
Location, Design, Construction and Maintenance of Onsite Wastewater
Treatment Systems, Subchapter 10 Part 6 of this Chapter.
2.6.7 Emergency Environmental Protection
A.
Emergency installation of environmental protection structures, and undertaking of
activities directly associated with the emergency containment and cleanup of oil
or hazardous materials in a jurisdictional area, including the resolution of leaking
underground storage tanks, is permissible in accordance with § 2.6.1 of this Part
provided that such installation or activity is undertaken under the direct
supervision of Department or Federal cleanup personnel or the Department’s
emergency response personnel. During the emergency cleanup, unnecessary
alterations of freshwater wetlands, buffers and floodplains shall be prevented to
the maximum extent possible, and best management practices for erosion and
sediment controls must be initiated and maintained. Where applicable, heavy
equipment working in freshwater wetlands must be placed on mats, and other
temporary measures must be taken to minimize soil and habitat disturbance.
Following emergency cleanup, the disturbed area must be stabilized and
restored to the satisfaction of the Department.
B.
The Freshwater Wetlands Program must be notified of the initiation of emergency
environmental cleanup and upon completion of emergency cleanup activities.
2.6.8 Site Remediation
A.
Activities within a jurisdictional area which are required by the Department for
remediation of contamination resulting from releases of oil or hazardous
materials are allowed in accordance with § 2.6.1 of this Part provided that:
1.
All site remediation activities are under the direct oversight or control of
the Department;
2.
The initial document or plan identifying potential impacts to the
jurisdictional area and all subsequent action plans are submitted,
whenever necessary, for the Freshwater Wetlands Program review;
3.
The remediation activities are only those necessary to protect or restore
freshwater wetlands or buffers from impacts or substantial threats
resulting from actual releases of hazardous materials; and
4.
The remediation activities incorporate all measures necessary to fully
protect, replace, restore or mitigate the harm to any affected freshwater
wetlands or buffers including best management practices, best available
technologies, and any other measures which, in the opinion of the
Department are necessary to:
a.
Comply with the substance and intent of these Rules;
b.
Protect the freshwater wetlands, buffer and floodplain environment;
and
c.
Protect the functions and values provided by freshwater wetlands,
buffers, floodplains, areas subject to flooding and areas subject to
storm flowage.
2.6.9 Utility Emergencies
Emergency access and repair or replacement of utility lines, poles, pipes,
structures, equipment or facilities which is necessary as a result of storm
damage, acts of vandalism, accidents or equipment failure is permissible in
accordance with § 2.6.1 of this Part provided that all affected freshwater
wetlands, buffers, floodplains, areas subject to flooding and areas subject to
storm flowage are fully restored following completion of the repair or
replacement.
2.6.10 New Utility Lines
A.
Installation, in accordance with § 2.6.1 of this Part, of new utility lines, poles,
pipes, structures, equipment or facilities is permissible only where installation
occurs on, above, or beneath existing or approved paved or unpaved roadways
and their existing or approved cleared shoulders, or on, above, or beneath
existing or approved railroad beds and their existing or approved cleared
shoulders; and where anti-seepage collars are used as appropriate to prevent
sub-draining effects on freshwater wetlands; and provided that:
1.
Existing culverts and the flow of water under bridges in roads or highways
are not permanently blocked or disrupted by going under or attaching to
such structure;
2.
The project does not cause any diversion of ground or surface water to or
from any freshwater wetlands;
3.
The preconstruction contours are restored immediately upon installation;
4.
All work in any freshwater wetlands in the easement is undertaken during
low-flow periods;
5.
All disturbed areas are revegetated after restoring contours; and
6.
The project design incorporates best management practices for
dewatering excavated areas.
B.
Installation, in accordance with § 2.6.1 of this Part, of new or replacement utility
lines and pipes to an existing structure where the pipe or conduit crosses any
jurisdictional area, including area subject to storm flowage, that is not freshwater
wetland or buffer, is permissible provided that the preconstruction contours are
restored immediately upon installation.
C.
Installation, in accordance with § 2.6.1 of this Part, of overhead poles or cable
lines that are conveyed on singular poles, including the installation of the pole(s),
is permissible within a jurisdictional area that is not freshwater wetland or buffer,
provided that:
1.
The lines do not cross over or through any area of freshwater wetland or
buffer; and
2.
The preconstruction contours are restored immediately upon installation.
2.6.11 Agricultural Practices By Any Property Owner Other Than a Farmer
A.
Continuing agricultural practices in a jurisdictional area, including cutting or
clearing of invasive plants, by any property owner other than a farmer are
permissible in accordance with § 2.6.1 of this Part provided that the activities are
restricted to existing or approved gardens, pastures, and fields which have been
in use on a regular basis.
B.
Expansion of gardens, pastures, and fields within a jurisdictional area is exempt,
in accordance with § 2.6.1 of this Part, provided that:
1.
No freshwater wetlands are altered; and
2.
All activity is located outside of any designated buffer zone (see § 2.23 of
this Part) and does not cause filling of any floodplains, areas subject to
flooding or areas subject to storm flowage.
2.6.12 Normal Farming and Ranching Activities
Normal farming and ranching activities carried out by farmers, as defined herein,
are exempt from obtaining permits in accordance with the provisions of § 2.13 of
this Part and the R.I. Gen. Laws §§ 2-1-22(i) and (k).
2.6.13 Conservation Activities
A.
Conservation activities, such as fish and wildlife management that are carried out
on State or Federal property by the Department or by the U.S. Department of
Interior Fish and Wildlife Service, are permissible in accordance with § 2.6.1 of
this Part. Such activities are limited to the following:
1.
Manipulation of water elevations within impoundment areas on State or
Federal property for the purpose of habitat and species management;
2.
Management of species and habitat conditions by cutting, clearing,
planting, plowing, or prescribed burning;
3.
The maintenance, repair or installation of in-stream structures for
manipulation and management of fisheries habitat including fish ladders,
fish diversions, fish traps and structures to moderate river or stream
velocities/volumes for fisheries management objectives;
4.
The maintenance, repair, replacement or installation of any water control
structure within an existing low hazard dam maintained and operated by
the Division of Fish and Wildlife for the management or conservation of
waterfowl or wildlife;
5.
The maintenance, repair, replacement or installation of small signs for the
purpose of trail markers, identification of property boundaries or display of
educational materials; and
6.
The activities described in §§ 2.6.13(A)(2) through (4) of this Part on lands
controlled by easement held by the State or Federal government provided
that flow levels are maintained.
B.
This Rule does not allow for the installation or removal of dams, construction of
new ponds, or filling or permanent drainage of freshwater wetlands, buffers, or
floodplains.
2.6.14 Monitoring and Research Activities
A.
The following monitoring and research activities are authorized within a
jurisdictional area in accordance with § 2.6.1 of this Part provided that there is no
permanent loss of freshwater wetlands, buffer, floodplain, area subject to flooding
or area subject to storm flowage, any soil disturbance is stabilized, any
temporary subsurface borings are properly closed, and the area is allowed to
revert to its natural condition.
1.
Installing groundwater monitoring wells to determine the depth to the
water table or the extent of subsurface contaminants; installing
groundwater table test pipes; onsite wastewater treatment system
(OWTS) test holes; taking exploratory borings for soil and ledge/bedrock
assessments; and installing pump test wells for the purpose of
investigating public water supply, including piezometers, staff gages, and
groundwater monitoring wells;
2.
Installing stream flow gauging stations by the United States Geological
Survey, Water Resources Division or by public water supply districts;
3.
Harvesting limited quantities of vegetation to estimate plant productivity or
biomass;
4.
Clearing footpaths or transect lines no greater than five feet (5’) in width to
permit wildlife surveys or access to sampling stations or plots;
5.
Excavation of temporary pits for examination of soil properties and for the
collection of soil samples; or
6.
Construction of temporary blinds for wildlife observation.
2.6.15 Temporary Educational, Recreational and Cultural Structures
The placement of temporary inert structures or items for use during specific
events such as water-skiing competitions, boat races, or public events or
festivals is permissible in accordance with § 2.6.1 of this Part, provided that such
structures or items are in place no longer than thirty (30) days, are removed
immediately after the specific event, and where they do no result in impedance of
flow. Such structures consist of temporary buoys, markers, floating docks less
than one hundred fifty square feet (150’) in size, and other similar structures.
2.6.16 Moorings and Anchorage for Single Boats
One (1) mooring or anchorage (not to exceed a weight of one hundred (100)
pounds) per waterfront lot for use by a single boat may be placed in accordance
with § 2.6.1 of this Part.
2.6.17 Fire Fighting
A.
Emergency withdrawal of water from a pond or flowing body of water for the
purpose of fighting fires is permissible in accordance with § 2.6.1 of this Part,
provided that the water withdrawal is for a specific emergency event and that
other sources of water are inadequate or inaccessible at the time of the
emergency.
B.
The installation of dry hydrants in ponds for fire-fighting purposes only is
permissible in accordance with § 2.6.1 of this Part, provided that there is no
cutting or clearing of woody vegetation and the intake pipe is at least one foot (1’)
above the pond bottom.
2.6.18 Restoration Planting Projects
A.
Planting in a jurisdictional area, other than freshwater wetlands, is permissible in
accordance with § 2.6.1 of this Part, provided that the following conditions are
met:
1.
The purpose of the project is to restore a disturbed, degraded or
unvegetated area such as a mowed lawn, a gravel area, or a parking lot;
2.
No cutting or clearing of native trees or shrubs will occur. Cutting of
existing groundcover to create a plantable site is limited to an area
immediately around each new plant, not to exceed a radius that is twice
the diameter of the root ball;
3.
Pavement removal is limited to that area that will be planted;
4.
All plantings must be non-invasive species, with a preference for native
species, and suitable for the site condition;
5.
No excavation, filling, draining or grading is allowed except for the addition
of topsoil for each new plant and the application of a layer of mulch or
woodchips less than two inches (2”) deep around each new plant;
6.
All disturbed soils must be stabilized with a suitable conservation seed mix
with a preference for native seed mixes;
7.
All plantings must be cared for and watered until they are established; and
8.
Except in areas that are currently paved or compacted gravel, protective
practices are implemented to safeguard potential turtle nesting areas,
including minimizing soil disturbance from May 15th through September
15th.
B.
For tracking purposes, the property owner must notify the Department’s Water
Quality and Wetland Restoration Team, in writing, within thirty (30) days after
completion of the restoration planting project.
2.6.19 High Hazard and Significant Hazard Dams
Maintenance, repair and emergency repair of high hazard and significant hazard
dams, as defined in the Department’s Rules and Regulations for Dam Safety,
Part 130-05-1 of this Title, are permissible, provided that all proposed projects
and activities adhere to the requirements of said Rules, and provided that the
project will not result in a substantial alteration of a dam, as defined herein.
2.6.20 Low Hazard Dams
A.
Limited cutting or clearing of vegetation is permissible, in accordance with § 2.6.1
of this Part, and as specifically provided for below:
1.
The cutting or clearing is limited to areas on and adjacent to the low
hazard dam, such that it does not exceed fifteen feet (15’) from the
perimeter of the dam, including the toe; or
2.
The cutting or clearing is necessary to access the dam to complete
maintenance activities.
B.
Limited maintenance of low hazard dams to maintain them in proper working
order is permissible, in accordance with § 2.6.1 of this Part, provided that the
activities are limited to filling minor erosion areas, lubricating and exercising
equipment, and re-pointing masonry areas.
C.
Inspection, maintenance and repair to any water control structure within a low
hazard dam is permissible, provided that the Freshwater Wetlands Program
receives written notification at least ten (10) days prior to the commencement of
the activity. Such notice must explain the activity to be performed and must state
the expected time of completion. The normal water surface elevation shall not be
substantially lowered except for that which is necessary to complete the
inspection, maintenance or repair of the structure. Where practicable, either
normal water elevations or temporarily lowered water elevations must be
maintained by the use of temporary cofferdams. Such cofferdams must remain in
place until maintenance is completed and must be removed upon project
completion.
2.6.21 Crossing or Relocating an Area Subject to Storm Flowage
A.
Crossing or relocating an area subject to storm flowage that is not within a
freshwater wetland, buffer or floodplain is permissible in accordance with § 2.6.1
of this Part, provided that the activities:
1.
Do not change the flow capacity of the area subject to storm flowage;
2.
Do not create a new discharge point; and
3.
Do not change the flood storage capacity.
2.6.22 Restoration of Freshwater Wetlands Resulting from Unauthorized
Alterations
A.
Activities within a jurisdictional area which are required by an enforcement action
issued by the Department to restore unauthorized alterations in freshwater
wetlands, buffers, floodplains, areas subject to flooding or areas subject to storm
flowage are allowed in accordance with § 2.6.1 of this Part provided that:
1.
All activities which may affect freshwater wetlands, buffers, floodplains,
areas subject to flooding or areas subject to storm flowage are under the
direct oversight or control of the Department;
2.
The activities are only those necessary to carry out the requirements as
directed by the Department to protect or restore freshwater wetlands,
buffers, floodplains, areas subject to flooding or areas subject to storm
flowage; and
3.
The activities incorporate all measures necessary to avoid and minimize
impacts to freshwater wetlands, buffers, floodplains, areas subject to
flooding or areas subject to storm flowage and will protect, replace,
restore, or mitigate the harm to any affected resource by including best
management practices, best available technologies, and any other
measures which, in the opinion of the Department are necessary to:
a.
Comply with the substance and intent of these Rules;
b.
Protect the freshwater wetland environment; and
c.
Protect the functions and values provided by freshwater wetlands,
buffers, floodplains, areas subject to flooding or areas subject to
storm flowage.
2.6.23 Control of Invasive Plants
A.
Limited cutting and clearing of invasive plants is allowed in accordance with §
2.6.1 of this Part provided that:
1.
A permit for control of aquatic nuisance plant species using
pesticides/herbicides is obtained from the Division of Agriculture, Pesticide
Control Program and all treatments are applied by a Department licensed
applicator; or
2.
The hand-pulling and removal of water chestnut (Trapa natans) is in
accordance with a project description and location provided to the
Department’s Water Quality and Wetland Restoration Team and is
reviewed and authorized by the Team; or
3.
The cutting for invasive species control is within freshwater wetlands or
buffers, where necessary to facilitate the growth of native plants, and
provided that:
a.
The project description and location are submitted to the
Department’s Water Quality and Wetland Restoration Team for
review, and the project is deemed to contain the necessary controls
and expertise; and
b.
Projects in freshwater wetlands or buffers that propose soil
excavation shall not be exempt according to this Rule; or
4.
The cutting and clearing of invasive plants is within a jurisdictional area
that is not freshwater wetlands, buffer or buffer zone.
2.6.24 Pedestrian Trails
A.
Establishment of a new pedestrian trail within a jurisdictional area is allowed in
accordance with § 2.6.1 of this Part only when:
1.
All activities are conducted outside of freshwater wetlands and buffer
zones;
2.
The trail and associated limits of disturbance are no wider than four feet
(4’) wide;
3.
Any grade changes shall not exceed four inches (4”) for the establishment
or maintenance of the trail;
4.
There is no increase in impervious area; and
5.
No alteration of surface or groundwater flows will occur except as may
otherwise be allowed in § 2.6.21 of this Part.
2.7
Standards Applicable to Regulated Projects and Activities and
Variance Procedures
§ 2.7 of this Part establishes freshwater wetlands and buffer standards, setback
requirements and other required standards applicable to projects and activities
as regulated pursuant to these Rules, except as provided in § 2.6 of this Part.
Exempt Activities or except as governed by the provisions of § 2.13 of this Part
for farmers conducting normal farming and ranching activities. The standards are
intended to protect and enhance the functions and values of freshwater wetlands,
buffers, floodplains, areas subject to flooding and areas subject to storm flowage.
2.7.1 Freshwater Wetlands and Buffer Protection Standards
A.
General Freshwater Wetlands Protection Standard
All projects and activities subject to this Rule shall be designed and carried out to
avoid alteration of freshwater wetlands.
B.
Freshwater Wetlands Buffer Standard
1.
§ 2.7.1(B) of this Part establishes buffer standards for projects and
activities carried out within a jurisdictional area. As defined herein, a buffer
is an area of undeveloped vegetated land adjacent to a freshwater
wetland that is to be retained in its natural undisturbed condition or an
area of land that is to be created to resemble a naturally occurring
vegetated area. Undeveloped vegetated land is an area of land that does
not consist of buildings, impervious surfaces, bare gravel, lawn or
landscaped areas.
2.
Buffer Zones. The land areas contiguous to freshwater wetlands as
specified in these Rules are designated as buffer zones (see § 2.23 of this
Part). The width of a buffer zone is measured in accordance with the
procedures in § 2.23 of this Part.
3.
Protection of Existing Freshwater Wetland Buffers. All projects and
activities shall be designed and carried out to avoid alteration of buffers
within buffer zones, except as provided for in § 2.7.1(B)(5) of this Part,
Residential Infill Lot Buffer Standard. The buffer within a designated buffer
zone shall consist of:
a.
All undeveloped vegetated land; and
b.
Any area to be newly created to resemble buffer pursuant to §
2.7.1(B)(4) of this Part.
4.
Creation of New Buffer on Existing Disturbed Property
a.
When a project or activity is proposed within a buffer zone that
does not consist entirely of undeveloped vegetated land, new buffer
area may be required to be created within a portion of the buffer
zone to resemble a naturally occurring vegetated area.
b.
A project or activity that cannot, due to site constraints, avoid
intrusion into the buffer zone shall be designed and carried out to
avoid alteration of the existing buffer as well as meet the following
minimum targets for creation of new buffer contiguous to freshwater
wetlands or existing buffer on the subject property:
(1)
For proposed projects or activities on property with no
existing buildings, the minimum target for total buffer width
(existing undeveloped vegetated land plus created buffer) is:
(AA)
Fifty percent (50%) of the applicable buffer zone width
from § 2.23 of this Part, not to exceed fifty feet (50’),
on lots greater than or equal to one (1) acre; or
(BB)
Fifteen feet (15’), on lots less than one (1) acre.
(2)
For proposed projects or activities on property that is greater
than or equal to three (3) acres, that is not a single-family
residential lot of record, that contains one (1) or more
existing structures, and where the proposed land
disturbance total is greater or equal to ten thousand square
feet (10,000’), the minimum target for total buffer width is:
(AA)
Twenty-five feet (25’) in the non-urban River
Protection Regions 1 and 2 (see § 2.24 of this Part);
or
(BB)
Fifteen feet (15’) in the urban region (see § 2.24 of
this Part).
c.
Creation of new buffer may be accomplished by the planting of
vegetation or by allowing the area to naturally revegetate, at the
discretion of the Department. The Department may require
plantings as a condition of a permit, and such area shall be defined
as buffer. When creating buffer, the Department may allow certain
areas to remain clear in order to accommodate existing utilities,
drainage easements, reasonable access to existing developed
shoreline features, property accessories, or conditions where re-
vegetation would require the removal or threaten the integrity of
existing structures.
5.
Residential Infill Lot Buffer Standard
a.
This standard shall apply to proposed new construction on an
individual residential lot of record, as of the effective date of these
Rules, where the lot meets the following conditions:
(1)
Has frontage on an existing road;
(2)
Has adjacent lots on both sides that are developed;
(3)
Is less than or equal to one (1) acre in size; and
(4)
Is undeveloped vegetated land.
b.
When the proposed new construction cannot meet the buffer and
the setback standards for the freshwater wetlands of concern, the
proposed structure foundation is to be located no closer to the edge
of the subject freshwater wetland than the structure foundation on
the adjacent lot which is farthest from the subject freshwater
wetland edge. The project shall be designed to avoid alteration of
the remaining buffer, and in no case shall the remaining buffer be
less than that shown in Table 1 in § 2.7.1(B)(5)(c) of this Part:
c.
Table 1. Minimum buffer and setback distances
Residential Infill Lot Size
Buffer Width
Setback
Less than 10,000 square feet
15 feet
Buffer plus 15 feet
Equal to or greater than
10,000 square feet and less
than 20,000 square feet
25 feet
Buffer plus 15 feet
Equal to or greater than
20,000 square feet (and less
than or equal to 43,560
square feet)
50 feet
Buffer plus 15 feet
6.
Buffer Management and Maintenance. A buffer shall be retained in a
natural vegetative, undisturbed condition to protect the functions and
values of the freshwater wetlands and buffer. Certain activities related to
buffer management may be authorized as exempt activities pursuant to
the provisions and conditions in § 2.6 of this Part.
C.
Setback Standards
1.
Setback Standards for Primary Structures. Primary structures (e.g.
residential dwellings, commercial/industrial structures, schools, churches,
etc.) must be located to meet a setback distance of no less than the buffer
width plus twenty feet (20’). Accessory structures must be located to meet
a setback distance of no less than the buffer width plus five feet (5’).
2.
Setbacks for Onsite Wastewater Treatment Systems. The setback
requirements for the components of an onsite wastewater treatment
system are specified in the Department Rules Establishing Minimum
Standards Relating to the Location, Design, Construction and
Maintenance of Onsite Wastewater Treatment Systems, Subchapter 10
Part 6 of this Chapter, in effect at the time of application. A leachfield and
the required ten foot (10’) cleared zone around it shall be located outside
of the buffer.
D.
Rare or Endangered Species Standard
No project or activity may result in degradation of the natural characteristics of
any rare freshwater wetland type; likewise, no project or activity may reduce the
ability of a freshwater wetlands or buffer to ensure the long-term viability of any
rare or endangered animal or plant species incorporated by reference in §§
2.3(A) and (B) of this Part or under the Federal Endangered Species Act.
E.
Flood Protection Standard
1.
Flood storage capacity: Projects and activities taking place in a floodplain
shall not result in any net reduction in flood storage capacity and shall not
reduce the rate at which floodwater is stored by the floodplain.
2.
Floodway obstruction: Projects and activities taking place within or
adjacent to rivers or streams shall not encroach into floodway limits with
any fill, structure or other development.
F.
Surface Water and Groundwater Diversion Standard
Projects and activities shall not adversely affect the flow of groundwater or
surface water into or out of any freshwater wetlands and shall not result in
obstruction of, or the reduction in storage capacity of, any area subject to
flooding or area subject to storm flowage.
G.
Stormwater Management Standard
Projects and activities shall meet the minimum standards in the Stormwater
Management, Design and Installation Rules, Subchapter 10 Part 8 of this
Chapter, or for single-family lots of record, the “RI Stormwater Management
Guidance for Individual Single Family Residential Lot Development” for the
recommended and primary means to achieve this standard.
H.
Erosion and Sedimentation Control Standard
Projects and activities shall be designed and carried out in a manner that
prevents soil erosion and sedimentation consistent with the Stormwater
Management, Design and Installation Rules, § 10-8.16 of this Chapter.
I.
Water Quality Standard
Projects shall not cause or contribute to a violation of any State water quality
standard for surface water or groundwater or contribute to significant degradation
of surface water or groundwater resources.
2.7.2 Review Criteria
A.
The following review criteria will be used by the Department to determine the
impacts of all projects and activities, either individually or cumulatively, upon the
functions or values of freshwater wetlands, buffers, floodplains, areas subject to
flooding and areas subject to storm flowage. All such projects shall be subject to
all of the review criteria contained within this Part and must incorporate those
best management practices, best available technologies, and any maintenance
or inspection schedules necessary to comply with the applicable criteria.
1.
A project or activity determined by the Department to meet the standards
in § 2.7.1 of this Part is presumed to satisfy the review criteria in §§
2.7.2(A) and (B) of this Part;
2.
No project or activity shall result in the adverse impacts identified in the
review criteria § 2.7.2(B) of this Part; and
3.
No project or activity shall result in any random, unnecessary or
undesirable alteration of a freshwater wetlands, buffer, floodplain, area
subject to flooding or area subject to storm flowage.
B.
Before issuing a permit, the Department must determine that a proposed project
or alteration will not result in:
1.
Significant reduction in the overall wildlife production or diversity of a
freshwater wetland or buffer;
2.
Significant reduction in the ability of a freshwater wetland or buffer to
satisfy the needs of a particular wildlife species;
3.
Significant displacement or extirpation of any wildlife species from a
freshwater wetland or surrounding areas due to the alteration of the
freshwater wetland or buffer;
4.
Any reduction in the ability of the freshwater wetland or buffer to ensure
the long-term viability of any rare animal or rare plant species;
5.
Any degradation in the natural characteristic(s) of any rare freshwater
wetland type;
6.
Significant reduction in the suitability of any freshwater wetland or buffer
for use by any resident, migratory, seasonal, transient, facultative, or
obligate wildlife species, in either the short or long term as a travel
corridor; feeding site; resting site; nesting site; escape cover; seasonal
breeding or spawning area;
7.
Any more than a minimal intrusion of, or increase in, less valuable,
invasive or exotic plant or animal species in a freshwater wetland or
buffer;
8.
Significant reduction in the wildlife habitat functions and values of any
freshwater wetland or buffer which could disrupt the management program
for any game or non-game wildlife species carried out by State or Federal
fish, game, or wildlife agencies;
9.
Significant reduction in overall current or potential ability of a freshwater
wetland or buffer to provide active or passive recreational activities to the
public;
10.
Significant disruption of any on-going scientific studies or observations
performed by or in cooperation with Federal, State, or municipal agencies
or educational institutions;
11.
Elimination of, or severe limitation to traditional human access to, along
the bank of, up or down, or through any rivers, streams, ponds, or other
freshwater wetlands or buffers;
12.
Any reduction in water quality functions and values or negative impacts to
natural water quality characteristics, either in the short or long term, by
modifying or changing: water elevations, temperature regimes, volumes,
velocity of flow regimes of water; increasing turbidity; decreasing oxygen;
causing any form of pollution; or modifying the amount of flow of nutrients
so as to negatively impact freshwater wetland functions and values;
13.
Any placement of any matter or material beneath surface water elevations
or erection of any barriers within any ponds or flowing bodies of water
which could cause any hazards to safety;
14.
Significant loss of important open space or significant modification of any
uncommon geologic or archaeological features;
15.
Significant modification to the natural characteristics of any freshwater
wetlands or buffer area of unusually high visual quality;
16.
Any decrease in the flood storage capacity of any floodplain or area
subject to flooding which could impair its ability to protect life or property
from flooding or flood flows;
17.
Significant reduction of the rate at which flood water is stored by any
floodplain or any area subject to flooding during any flood event;
18.
Restriction or significant modification of the path or velocities of flood flows
for the one (1) year, ten (10) year, or one hundred (100) year frequency,
twenty-four (24) hour, Type III storm events so as to cause harm to life,
property, or other functions and values provided by freshwater wetlands,
buffers or floodplain;
19.
Placement of any structure or obstruction within a floodway so as to cause
harm to life, property, or other functions and values provided by freshwater
wetlands or their associated buffers;
20.
Any increase in run-off rates over pre-project levels or any increase in
peak flood elevations within freshwater wetlands, buffers, floodplains,
areas subject to flooding or areas subject to storm flowage for the one (1)
year, ten (10) year, or one hundred (100) year frequency, twenty-four (24)
hour, Type III storm events which could impair their ability to protect life or
property from flooding or flood flows;
21.
Any increase in run-off volumes and discharge rates which could, in any
way, exacerbate flooding conditions in flood-prone areas;
22.
Significant changes in the quantities and flow rates of surface or
groundwater to or from isolated freshwater wetlands (e.g., those
freshwater wetlands without inflow or outflow channels);
23.
Placement of any structural stormwater best management practices within
freshwater wetlands, or proposal to utilize freshwater wetlands as a
stormwater best management practice;
24.
Any more than a short-term decrease in surface water or groundwater
elevations within any freshwater wetlands;
25.
Non-compliance with the Rhode Island Department of Environmental
Management Water Quality Regulations, Subchapter 05 Part 1 of this
Chapter; or
26.
Any detrimental modification of the ability of a freshwater wetland or buffer
to retain or remove nutrients or act as natural pollution filter.
2.7.3 Variances from Standards Applicable to Regulated Projects and Activities
A.
General Variance Criteria
1.
Unless eligible as an exemption pursuant to § 2.6 of this Part, or eligible
for approval under a Freshwater Wetlands General Permit (see § 2.10 of
this Part), projects and activities that cannot meet the standards specified
in §§ 2.7.1(A) through (F) of this Part may apply for a variance in order to
receive a permit from the Department. Variances shall only be granted if
the applicant demonstrates and documents that all of the following criteria
have been met. No variance is available for standards specified in §§
2.7.1(G) through (I) of this Part.
2.
All reasonable alternatives to avoid and minimize impacts to freshwater
wetlands, buffers, floodplains, areas subject to flooding and areas subject
to storm flowage have been pursued and incorporated into the project
design and application as follows:
a.
Avoidance: All persons must satisfactorily demonstrate to the
Department in the form of a written narrative that all probable
impacts to freshwater wetlands, buffers, floodplains, areas subject
to flooding and areas subject to storm flowage functions and values
have been avoided to the maximum extent possible. The written
narrative must describe what steps were taken to avoid impacts to
freshwater wetlands, buffers, floodplains, areas subject to flooding
or areas subject to storm flowage. At a minimum, applicants must
consider and address the following issues:
(1)
Whether the primary proposed activity is water-dependent or
whether it requires access to freshwater wetlands, buffers,
floodplains, areas subject to flooding or areas subject to
storm flowage as a central element of its primary purpose;
(2)
Whether any areas within the same property or other
properties owned or controlled by the applicant could be
used to achieve the project purpose without altering the
natural character of any freshwater wetlands, buffers,
floodplains, areas subject to flooding or areas subject to
storm flowage;
(3)
Whether any other properties reasonably available to, but
not currently owned or controlled by, the applicant could be
used to achieve the project purpose while avoiding
freshwater wetlands, buffers, floodplains, areas subject to
flooding or areas subject to storm flowage alterations. A
property is reasonably available if, in whole or in part, it can
be acquired without excessive cost, taking individual
circumstances into account, or, in the case of property
owned or controlled by the same family, entity, group of
affiliated entities, or local, State or Federal government, may
be obtained without excessive hardship;
(4)
Whether alternative designs, layouts or technologies could
be used to avoid freshwater wetlands, buffers, floodplains,
areas subject to flooding or areas subject to storm flowage
or impacts on functions and values on the subject property
or whether the project purpose could be achieved on other
property that is reasonably available and would avoid
freshwater wetlands, buffers, floodplains, areas subject to
flooding or areas subject to storm flowage;
(5)
Whether the applicant has made any attempts (and if so
what they were) to avoid alterations to freshwater wetlands,
buffers, floodplains, areas subject to flooding or areas
subject to storm flowage by overcoming or removing
constraints imposed by zoning, infrastructure, parcel size or
the like; and
(6)
Whether the feasible alternatives that would not alter the
natural character of any freshwater wetlands, buffers,
floodplains, areas subject to flooding or areas subject to
storm flowage on the subject property or on property that is
reasonably available, if incorporated into the proposed
project would adversely affect public health, safety or the
environment.
b.
Minimization: For any impact to freshwater wetlands, buffers,
floodplains, areas subject to flooding or areas subject to storm
flowage that cannot be avoided, the applicant must satisfactorily
demonstrate to the Department in the written narrative that the
impact to their functions and values have been reduced to the
maximum extent possible. At a minimum, applicants must consider
and address the following issues:
(1)
Whether the proposed project is necessary at the proposed
scale or whether the scale of the alteration could be reduced
and still achieve the project purpose;
(2)
Whether the proposed project is necessary at the proposed
location or whether another location within the site could
achieve the project purpose while resulting in less impacts to
the freshwater wetlands, buffers, floodplains, areas subject
to flooding or areas subject to storm flowage;
(3)
Whether there are feasible alternative designs, layouts,
densities or technologies, that would result in less impacts to
the freshwater wetlands, buffers, floodplains, areas subject
to flooding or areas subject to storm flowage while still
achieving the project purpose; and
(4)
Whether reduction in the scale or relocation of the proposed
project to minimize impact to the freshwater wetlands,
buffers, floodplains, areas subject to flooding or areas
subject to storm flowage would result in adverse
consequences to public health, safety or the environment.
3.
All applicable review criteria specified in § 2.7.2 of this Part have been
satisfied.
4.
Due to the conditions at the project site, the applicable standard(s) cannot
be met.
5.
The relief requested by the applicant is the minimum variance to the
applicable standard(s) necessary to allow a reasonable alteration or use of
the site as required by §§ 2.7.3(A)(2)(a) and (b) of this Part.
6.
The requested variance to the applicable standard(s) is not due to any
prior action of the applicant or the applicant’s predecessors in title.
7.
Due to the conditions of the project site in question, the standard(s) will
cause the applicant an undue hardship. In order to receive relief from an
undue hardship an applicant must demonstrate inter alia the nature of the
hardship and that the hardship is shown to be unique or particular to the
site. Mere economic diminution, economic advantage, or inconvenience
does not constitute a showing of undue hardship that will support the
granting of a variance.
B.
Variance Criteria for Public and Governmental Bodies
1.
Unless eligible as an exemption pursuant to § 2.6 of this Part or eligible for
approval under a Freshwater Wetlands General Permit (see § 2.10 of this
Part), public or governmental projects or activities that do not meet the
standards specified in §§ 2.7.1(A) through (F) of this Part are also required
to obtain a variance in order to receive a permit from the Department.
Variances shall be granted if the applicant demonstrates and documents
that all of the following criteria have been met. No variance is available for
standards specified in §§ 2.7.1(G) through (I) of this Part.
a.
All reasonable alternatives to avoid and minimize impacts to
freshwater wetlands, buffers, floodplains, areas subject to flooding
and areas subject to storm flowage have been pursued and
incorporated into the project design and application as required in
§§ 2.7.3(A)(2)(a) and (b) of this Part;
b.
All applicable review criteria specified in § 2.7.2 of this Part have
been satisfied;
c.
Due to the conditions at the project site, the applicable standards
cannot be met; and
d.
The proposed project serves a necessary public purpose that
provides benefits to the public.
C.
Alternative Configuration of Vernal Pool Buffer Zone
Where an applicant is unable to meet the buffer standard associated with a
vernal pool, the applicant may propose an alternative buffer zone configuration
that is protective of the functions and values of the associated vernal pool. This
alternative configuration will be reviewed on a case-by-case basis by the
Department through the variance process.
D.
In those instances where a variance would be obviated or reduced if a variance
for a setback were acquired from a local municipality, the applicant must first
exhaust his or her remedies before the local municipality prior to submitting an
application for a permit to the Department.
E.
Relief from a standard does not remove the applicant’s responsibility to comply
with all other requirements pursuant to the Act and this Part.
2.8
Application Types and General Application Requirements
§ 2.8 of this Part describes general application requirements and provisions
applicable to all application types unless otherwise specified herein. Additional
requirements for each application type are described in §§ 2.9 through 2.14 of
this Part.
2.8.1 Application Types
A.
These Rules provide for the following types of applications:
1.
Request to Determine the Presence of Jurisdictional Area: This application
may be submitted to request that the Department determine whether a
regulated freshwater wetlands or other jurisdictional area is present on the
applicant’s property (see § 2.9.2 of this Part). The Department possesses
the sole authority to determine which areas are deemed freshwater
wetlands, buffers, floodplains, areas subject to storm flowage or areas
subject to flooding.
2.
Request to Verify Freshwater Wetland Edges: This application may be
submitted to request that the Department confirm the freshwater wetland
edge(s) delineated by the applicant and, if in substantial agreement with
the documentation provided, confirm the presence of the identified
freshwater wetlands and their delineated edges (see § 2.9.3 of this Part).
Furthermore, the Department will identify the type(s) of freshwater
wetland(s) verified with the applicable buffer zones and associated
jurisdictional area.
3.
Request for Regulatory Applicability: This application may be submitted to
request that the Department make a determination as to whether a
proposed project does or does not require a permit (see § 2.9.4 of this
Part).
4.
Application for a Freshwater Wetlands General Permit: This application
may be submitted to seek approval for a proposed project that meets all
the eligibility requirements of a Freshwater Wetlands General Permit (see
§ 2.10 of this Part).
5.
Application for a Freshwater Wetlands Permit (see § 2.11 of this Part):
a.
The Freshwater Wetlands Permit decision serves as the preliminary
determination pursuant to R.I. Gen. Laws § 2-1-22(a).
b.
Unless a proposed project or activity is exempt (see § 2.6 of this
Part) or is eligible for approval for a Freshwater Wetlands General
Permit (see § 2.10 of this Part):
(1)
This application must be submitted for a project within a
jurisdictional area or that requires approval from the
Department in accordance with § 2.5 of this Part. For a
project that does not meet all of the standards specified in §
2.7.1 of this Part, a request for a variance to the standards in
accordance to § 2.7.3 of this Part must be submitted with the
Application for a Freshwater Wetlands Permit.
(2)
For projects on single family lots, an applicant may choose
to submit to the Department a Joint OWTS Application for
New Building Construction or for Alteration to a Structure
and for a Freshwater Wetlands Permit, herein referred to as
a Joint OWTS/Freshwater Wetlands Application, provided
that the project does not involve variances from either these
Rules or the Rules Establishing Minimum Standards
Relating to Location, Design, Construction and Maintenance
of Onsite Wastewater Treatment Systems, Subchapter 10
Part 6 of this Chapter.
6.
Application for a Significant Alteration: This application must be submitted
to obtain a permit for a proposed project that will, or is likely to, result in a
significant alteration of a freshwater wetlands, buffer or floodplain (see §
2.12 of this Part).
7.
Application for Emergency Alteration: This application must be submitted
either by the owner of the property or an appropriate official, orally or in
writing, to request a permit for an emergency alteration in the event that
public health or safety is at imminent risk (see § 2.14.1 of this Part).
8.
Application for Permit Renewal: This application must be submitted to
renew a previously granted freshwater wetlands permit (see § 2.14.2 of
this Part).
9.
Application for Permit Modification: This application must be submitted to
request approval of a minor modification to a previously permitted project
(see § 2.14.3 of this Part).
10.
Application for Permit Transfer: This application may be submitted to
request the transfer of a valid permit to a new property owner (see §
2.14.4 of this Part).
11.
Application Relating to Farmers: This application must be submitted
directly to the Department's Division of Agriculture for a determination as
to whether the project represents an insignificant or a significant alteration
in accordance with these Rules (see § 2.13 of this Part).
2.8.2 Application Forms and Their Submission
A.
What to Submit: It is the responsibility of each applicant to submit a completed
application package, including originals of all applicable forms available from the
Department and any additional supporting information required by the
Department as specified in §§ 2.8 through 2.14 of this Part. The application must
be accompanied by full payment of any applicable fee per §§ 2.8.8 and 2.8.9 of
this Part.
B.
Who May Submit: The applicant must be the owner or owners of the property or
easement that is the subject of the application, or it must be the government
agency or entity with power of condemnation over such property or easement.
C.
Notification of Applicant and Agents: The Department will mail notices and other
written communications regarding the application to the applicant and to the
applicant’s attorney, agent or other representative if, at the time the application is
filed, the applicant so informs the Department in writing of his or her name and
mailing or e-mail address.
2.8.3 Signatures
A.
All application forms must be signed by the applicant, and the applicant's name
must be clearly printed near the signature. In cases where a power of attorney is
exercised, a notarized copy of the power of attorney must be attached to the
application.
B.
In cases where the property is owned or controlled by a person that is not an
individual, the application shall be signed as follows, and shall be accompanied
by the titles of all such signatories:
1.
For a corporation, company, fire district, association, club, non-profit
agency or other entity not specifically identified in this § 2.8.3(B)(1) of this
Part: by an officer with legal authority to bind the appropriate entity;
2.
For a partnership: by a general partner;
3.
For a municipal, State or Federal government, or any division, subdivision
or agency thereof: by either a principal executive officer or by a ranking
elected official. For purposes of this section, a Principal Executive Officer
of a governmental agency includes:
a.
The Chief Executive Officer of the agency, or
b.
A Senior Executive Officer having responsibility for the overall
operations of a principal organizational unit of the agency;
4.
For an estate: by the executor/executrix or administrator of the estate.
C.
Except as noted below, applicants proposing projects on their own property and
within a jurisdictional area either partially or wholly on property owned or
controlled by others must obtain written notarized authorization from the
landowner of the property within which the jurisdictional area will be directly
altered as a result of a proposed project. Such written, notarized authorizations
must be provided to the Department and must expressly authorize the applicant
to apply for the proposed site alterations as depicted on the site plans submitted
with the application. The authorizing landowner does not become an “applicant”
as described in § 2.8.2(B) of this Part by granting such written notarized
authorization to an applicant.
D.
Written notarized authorization shall not be required for freshwater wetland
alterations associated with full or partial removal of a dam proposed for the
purpose of habitat improvement, restoration or dam safety. The surface water
(impounded) upstream of the dam must be considered a flowing body of water,
and not a pond, both prior to and after completion of the project. This exemption
applies subject to confirmation by the Department.
E.
If the applicant is a government agency or entity, the agency or entity must
demonstrate that it owns the property or holds an easement of sufficient scope to
cover the proposed project or activity; or has the requisite power of
condemnation with regard to the relevant area. In such cases, authorization from
each property owner who owns property containing a jurisdictional area that will
be altered as a result of a proposed project is not required.
F.
Any change in property ownership during the processing of any application will
require the following:
1.
The submission of a new application form with the identity of the new
owner and appropriate signatures; and
2.
A certified copy of the deed of transfer for an Application for a Significant
Alteration only.
2.8.4 Site Plan Requirements
A.
Site plans must be submitted with the following application types:
1.
Request to Verify Freshwater Wetland Edges (§ 2.9.3 of this Part);
2.
Application for a Freshwater Wetlands General Permit (§ 2.10 of this Part);
3.
Application for a Freshwater Wetlands Permit (§ 2.11 of this Part);
4.
Application for a Significant Alteration (§ 2.12 of this Part); and
5.
Application for Permit Modification (§ 2.14.3 of this Part).
B.
Site plans may be required for other application types as specified in §§ 2.9
through 2.14 of this Part.
C.
The correct number of site plans required by the Instructions for Submittal must
be provided at the time of submission. If additional plans are required, the
applicant will be informed and must submit them.
D.
All site plans must be drawn to scale. The scale of all plans must be no smaller
than one inch (1”) equals one hundred feet (100’) (1" = 100'); however, a larger
scale is preferred (e.g., one inch (1”) equals forty feet (40’) (1" = 40')). Where
additional detail is required to complete its evaluation, the Department may
require larger scaled details.
E.
All site plans must be at least eight and one half inches (8 ½”) by eleven inches
(11”) (8 1/2" x 11") in size, but no larger than twenty-four inches (24”) by thirty-six
inches (36”) (24" x 36").
F.
All site plans must contain a title block, the original date of the plan, and the
latest revision date of the plan if applicable. The title block must include the name
of the person or party involved, the proposed project title, if any, the principal
street or road abutting the site, the tax assessor's plat and lot number(s), the city
or town, the name of the preparer, and the scale of the plan.
G.
All site plans containing more than one (1) sheet must be numbered
consecutively (specifically: “page 1 of [total number of sheets],” and so forth).
H.
All site plans must contain a legend which explains all markings or symbols.
I.
All site plans must have all markings permanently fixed. Site plans that are
pieced together with tape or contain markings of pen, pencil, crayon, markers or
other items that can be changed or altered at a later date are not acceptable.
Blueline or blackline prints or photocopies of originals are acceptable.
J.
All site plans must, at a minimum, depict the following:
1.
Street(s) abutting the site with fixed reference points, (e.g., utility poles
and numbers, house and number, and any other similar structures);
2.
Distance and direction to nearest street intersection;
3.
Magnetic North Arrow;
4.
Entire property boundary outline and dimensions, which may be shown on
a separate plan sheet;
5.
Inset map showing location of site in the community;
6.
Any other fixed referenced points or developed land including, but not
limited to, stone walls, buildings, fences, edges of fields/woods, trails,
access roads, bare gravel or paved areas; impervious surfaces, lawns and
landscaped areas; and
7.
Scale of plans.
K.
All site plans indicating physical features, distances, contour elevations, property
lines, freshwater wetland edges, or other information provided as baseline data
must clearly note whether such information was obtained by on-site survey, by
aerial photogrammetry sources, or by reproduction from other maps or plans.
Site plan information obtained from aerial photogrammetry sources or by
reproduction from other plans or maps must provide an estimate of the maximum
possible horizontal or vertical error between the information provided and the
actual on-site conditions. Site plans developed from on-site surveys must clearly
note what class or standard the survey meets.
L.
All site plans submitted with a Request to Verify Freshwater Wetland Edges, an
Application for a Freshwater Wetlands General Permit, an Application for a
Freshwater Wetlands Permit or an Application for a Significant Alteration must
accurately depict the edge of all freshwater wetlands, applicable buffer zones,
buffers, and the limits of other applicable jurisdictional areas in accordance with §
2.8.5 of this Part.
M.
All site plans submitted for review or approval of a proposed project shall include
and depict the following, where applicable:
1.
Where changes to grades are proposed, both current and proposed
contour line elevations at maximum intervals of two feet (2’) and where no
changes to grades are proposed, include a notation which so indicates;
2.
Profiles and cross sections drawn to scale;
3.
A labeled ‘limit of disturbance’ that encloses all proposed temporary and
permanent vegetative clearing and surface or subsurface disturbance
associated with the proposed project;
4.
All temporary and permanent erosion and sediment controls;
5.
All temporary and permanent stormwater, flood protection and water
quality management controls, and all best management practices;
6.
All proposed measures to conduct, contain or otherwise control the
movements of surface water, groundwater, or stormwater flows; and the
ultimate destination of such flows;
7.
Any and all construction activities either above or below the earth's
surface proposed to occur within a jurisdictional area, including the height
of buildings;
8.
Any additional specific requirements contained in the application package
checklist for proposed projects; and
9.
Any area within a buffer zone that is to be created and maintained as
buffer in accordance with § 2.7.1(B)(4) of this Part.
N.
Each site plan sheet prepared by a registered professional must bear the stamp
of that professional, along with the date and his or her signature. Site plans
submitted for an Application for a Significant Alteration must bear the stamp and
signature of a Registered Professional Engineer.
2.8.5 Freshwater Wetland Edge Delineation and Related Requirements
A.
Depiction on Site Plans – All site plans must accurately depict the freshwater
wetland edges, buffers zones, buffers and jurisdictional area as follows:
1.
The edge of any freshwater wetlands relied on for depiction of associated
buffer zones;
2.
The edge and direction of flow of any river, stream, area subject to
flooding or area subject to storm flowage;
3.
The outer extent of any applicable buffer zone;
4.
The edge and elevation of any flood plain and the limit of any floodway,
except the Department may grant an exception to this requirement when:
a.
Pre-determined one hundred (100) year flood elevations are not
available from published sources including previous engineering
studies; and
b.
When a Registered Professional Engineer provides clear and
convincing documented evidence that the project site is above any
probable one hundred (100) year flood elevation;
5.
The outer extent of the jurisdictional area; and
6.
The name of any surface or flowing water body or any other freshwater
wetlands where applicable.
B.
Delineation of Freshwater Wetland Edges: Freshwater wetland edges shall be
delineated on the property as follows:
1.
The freshwater wetland edge shall be flagged with sequentially numbered
or lettered flags. Flags must be placed at the freshwater wetland edge in
sufficient numbers to clearly identify the edge. The distance between flags
must allow for adequate visibility from one (1) flag to another;
2.
The freshwater wetland edge shall be surveyed and recorded on a site
plan showing the locations and numbers/letters of the flags corresponding
with those flags at the site.
3.
Field delineation of freshwater wetland edges may not be required in the
following instances:
a.
The freshwater wetland has well-defined edges, provided that the
edges are otherwise accurately located, depicted and labeled on
the site plans;
b.
The proposed project will be sited in an already disturbed area, and
sufficient fixed references are available to allow for on-site
confirmation of freshwater wetland edges (in such cases, depiction
on site plans of approximate freshwater wetland edges will be
acceptable); or
c.
The freshwater wetland is on adjacent or nearby property, provided
that the depiction of freshwater wetland edges on the site plans
submitted pursuant to this Rule is based on best available mapping
or other reliable information and sufficient fixed references are
available to allow for onsite confirmation.
4.
Field delineation of the edges of rivers, streams, areas subject to storm
flowage, buffers, buffer zones, jurisdictional area limits or floodplains, or
the contiguous jurisdictional area that extend outward from the edges of
rivers, streams, drinking water supply reservoirs and all other freshwater
wetlands is not required.
C.
Use of Global Position System (GPS) technology to delineate freshwater wetland
edges is permissible only if GPS results are at least as accurate as a ground
survey. The use of GPS must be so noted on site plans, and the Department
reserves the right to require a standard ground survey.
2.8.6 Additional Site Work
A.
To facilitate site inspection by the Department, the applicant must perform site
work to clearly identify and label the following activities and features, as
applicable:
1.
Property boundaries in or adjacent to freshwater wetlands, if few or no
fixed reference points are available;
2.
Freshwater wetland edges, in accordance with §§ 2.8.5 and 2.21 of this
Part, flagged for verification or for review of a proposed project;
3.
Periodic points of reference to the proposed project;
4.
The boundary of the outermost limit of disturbance (e.g., filling, clearing,
soil disturbance);
5.
Outlines of proposed ponds and stormwater best management practices;
6.
Subdivision lots and numbers;
7.
Corner locations of proposed structures in or adjacent to freshwater
wetlands;
8.
Corner locations of proposed septic systems on proposed lots containing
freshwater wetlands (staked and labeled);
9.
Center lines of roadways, pipelines and utility lines, with station numbers
indicated; and
10.
Centerlines of proposed drainage channels.
2.8.7 Requirements Regarding Use of Professionals
A.
State or other law, including these Rules, may require professionals to prepare
site plans, specifications, reports or other documents related to activities subject
to these Rules. The applicant, or the respondent in matters concerning
enforcement actions, is responsible for engaging or employing any and all such
professionals. Such licensed professionals shall affix their stamp, signature and
date of signing upon those plans, specifications, documents, or portions thereof,
for which they are responsible.
B.
When a Registered Professional Engineer is engaged, all engineering work that
applies to the project application (e.g., drainage calculations and drainage
narrative) must be stamped by the engineer; and the engineer shall be registered
in the State of Rhode Island.
C.
These Rules require, or provide the Department with discretion to require, the
use of a Registered Professional Engineer in the following instances:
1.
Pursuant to R.I. Gen. Laws § 2-1-22, site plans submitted for an
Application for a Significant Alteration must bear the stamp and signature
of a Registered Professional Engineer.
2.
The flood plain edge must be established by a Registered Professional
Engineer if one hundred (100) year floodplain data are unavailable from
the Federal Emergency Management Agency (FEMA).
3.
Where pre-determined one hundred (100) year flood elevations are
unavailable, the applicant must provide clear and convincing documented
evidence prepared by a Registered Professional Engineer that the project
site is above any probable one hundred (100) year flood elevation.
4.
With regard to an Application for a Significant Alteration, the Department
may require written certification from a Registered Professional Engineer
attesting to the completion of all engineered portions of the project that are
described or referred to in the permit and on the approved site plans.
D.
As further described in guidance documents available from the Department,
applicants are strongly advised to retain the services of qualified professionals
with the educational background and experience necessary to perform the
following tasks:
1.
Identification and delineation of freshwater wetland edges §§ 2.8.5 and
2.21 of this Part; and
2.
Evaluation of freshwater wetland functions, values, and impacts §
2.12.2(A)(4) of this Part.
E.
When an approval requires a certification that a proposed project was
constructed in accordance with the approved site plans or all terms and
conditions of a permit, that certification must be prepared and submitted by an
appropriate licensed professional.
F.
Professionals who have prepared assessments, evaluations, recommendations,
or reports on behalf of an applicant or respondent in matters involving
enforcement of these Rules shall be identified.
2.8.8 General Fee Requirements
A.
The applicant must pay all required fees to the Department in full at the time the
applicant submits any application or request for hearing.
B.
The fees for proposed projects and activities are set forth in the fee schedule
(see § 2.8.9 of this Part).
C.
Unless specified in the Fee Schedule, fees submitted to the Department are not
refundable once the technical review of the application has commenced;
however, for the original applicant only, the Department will apply fifty percent
(50%) of the fee submitted for an Application for a Freshwater Wetlands Permit
to the cost of a new application for the project, if:
1.
A determination of a significant alteration is issued, and the original
applicant subsequently files an Application for a Significant Alteration for
the proposed project within six (6) months of the date the significant
alteration determination was issued; or
2.
A determination of a significant alteration is issued with recommendations
to prevent such an alteration, and the original applicant files a second
Application for a Freshwater Wetlands Permit that incorporates the
recommendations, within six (6) months of the date of issue of the original
determination.
D.
All fees must be paid by check or money order made payable to the Rhode
Island General Treasurer.
E.
No application fees pursuant to these Rules are required for projects where the
Department or a municipality is the applicant, or for an Application for Emergency
Alterations (§ 2.14.1 of this Part).
2.8.9 Fee Schedule
A.
Table 2. Freshwater wetlands application fees:
Application Type
Lot Size/Length
Fee
1. Determine the Presence of Jurisdictional
Area:
a. 0 – 5 acres
$150.00
b. >5 – 20 acres
$250.00
c. > 20 acres
$500.00
2. Verify Freshwater Wetland Edges:
a. < 500 feet
$300.00
b. 500 to 999 feet
$600.00
c. > 1000 feet
$1,000.00
3. Regulatory Applicability
$150.00
4. Freshwater Wetlands General Permit
$150.00
5. Freshwater Wetlands Permit and Significant Alteration
See Project Types
§§ 2.8.9(B) and
(C) of this Part
6. Joint Permit
OWTS plus
Wetlands Fee
7. Permit Transfer
$100.00
8. Permit Modification
$150.00
9. Permit Renewal
$200.00
10. Negotiated Settlements
$500.00
11. Variance (Project types with an asterisk (*) in § 2.8.9(C) of
this Part do not require a variance fee.)
Permit Fee plus
$500.00
B.
Table 3. Application fees for the following project types:
Project Type
Lot
Size/Number
of Lots
Application
for
Freshwater
Wetlands
Permit Fee
Application for
Significant
Alteration Fee
1. Projects Associated with Existing Single-Family Lot
$200.00
$400.00
2. Construction of New Single-Family Lot
$450.00
$900.00
3. Projects Associated with Existing
Non-Single Family, not miscellaneous
in § 2.8.9(C) of this Part
a. 0 – 5 acres
$300.00
$600.00
b. > 5 – 20
acres
$1,000.00
$2,000.00
c. > 20 acres
$2,000.00
$4,000.00
4. Construction of New Non-Single
Family, not miscellaneous in §
2.8.9(C) of this Part
a. 0 – 5 acres
$500.00
$1,000.00
b. > 5 – 20
acres
$1,500.00
$3,000.00
c. > 20 acres
$3,000.00
$6,000.00
5. New Subdivisions
a. 1 – 9 Lots
$250.00 per
Lot
$500.00 per Lot
b. 10 or more
Lots
$2,500.00
plus $200.00
per Lot
$5,000.00 plus
$400.00 per Lot
6. The maximum total fee for any subdivision is:
$10,500.00
$15,000.00
C.
Table 4. Application fees for miscellaneous project types:
Miscellaneous Project Type
App. for
Wetlands
Permit Fee
App. for
Significant
Alteration
Fee
*
1. Individual docks, floats
$100.00
$300.00
*
2. Wildlife habitat project or water quality
improvement project
*
3. Dry hydrants
*
4. Freshwater wetland restoration project
*
5. Aquatic plant control project
6. Land redevelopment/reuse project limited to
conversion of sand and gravel banks, mill sites,
abandoned commercial/industrial property to
public recreation facilities
$300.00
$750.00
7. Rehabilitation of existing parks or recreational
areas
*
8. Multiple docks, floats or individual boat
launches
9. Pedestrian trails, paths, foot bridges
10. Irrigation projects, subdrains
*
11. Relocation/channelization of an area subject
to storm flowage
*
12. Dam repair, alteration or removal projects
13. Wells other than for single family house lots
$600.00
$2,000.00
14. New pond construction
*
15. Dredging existing ponds
16. New or replacement drainage
structures/facilities, e.g., culverts
17. New access drive and roadways
*
18. Construction of all new dams
$1,000.00
$2,000.00
19. New parks or recreational areas
$1,000.00
$2,500.00
20. Land clearing and/or grading operations
$1,000.00
$2,500.00
21. Industrial processing/cooling, alternative
energy project
22. Bike paths
*
23. River or stream relocation/channelization
24. Surface mining, e.g. gravel quarry
$5,000.00
$10,000.00
25. New golf course
26. Road, Bridge,
Railway, Airport facility
a. Reconstruction
$2,000.00
$4,000.00
b. New Construction
$5,000.00
$10,000.00
27. Utility installation,
and Transmission lines
a. Reconstruction
$2,000.00
$4,000.00
b. New Construction
$5,000.00
$10,000.00
28. Other new projects not listed above
$1,200.00
$4,000.00
D.
Application hearings: Fees are required to cover the costs for all investigations, a
stenographer, an original transcript, room rental, and a hearing officer.
1.
Public Hearings equals two thousand five hundred dollars ($2,500.00).
2.
Adjudicatory Hearings equals two thousand dollars ($2,000.00); however,
in the event that the cost of the hearing exceeds the fee paid, the
Department, through the AAD will require an additional fee which the
applicant must submit prior to the Department’s issuance of any final
decision regarding an application. The adjudicatory hearing fee shall
accompany the written request for hearing and shall be filed directly with
the clerk of the AAD.
3.
Reimbursement of hearing fees may be allowed provided that:
a.
No costs relating to the hearing were incurred by the Department,
including the AAD. Where costs were committed or incurred, but do
not exceed the initial fee, the Department may provide a partial
reimbursement; and
b.
All requests for full or partial reimbursement must be in writing and
received by the Department within thirty (30) days following the
Department’s issuance of any final decision regarding an
application.
2.8.10 Application Coordination
A.
Preapplication and Other Meetings
Any person may request a meeting with representatives of the Department to
discuss regulatory procedures and requirements consistent with guidelines
established by the Department.
B.
Coordination with the Onsite Wastewater Treatment System (OWTS) Program
The Department reserves the right to require that applications for the same
proposed project be submitted concurrently to the Freshwater Wetlands Program
and to the OWTS Program to enable the Department to undertake a joint review.
C.
Application Processing
The Department will process completed applications generally in the order in
which properly completed initial application materials are received by the
Department, except where potential competing demands of State and
Department priorities dictate otherwise; including, but not limited to, those
applications submitted in accordance with R.I. Gen. Laws Chapter 42-117.
D.
Only those applications that are determined to be complete in accordance with
these Rules and are accompanied by the proper fee will be processed by the
Department.
E.
Written Response. All Department decisions, determinations or authorizations,
with the exception of responses to Requests for Emergency Alterations, will be
issued in writing and signed by the Department.
F.
Any determination, verification or permit issued by the Department pursuant to
any application involving freshwater wetlands does not obviate the need for the
applicant to obtain any and all other necessary permits, and for the applicant and
project to comply with all other applicable Federal, State and local laws,
Regulations and ordinances.
2.8.11 Coordination with Municipalities
A.
Applicants for major land development or major subdivision projects, as defined
in R.I. Gen. Laws § 45-23-32, must submit, at the time the application is
submitted to the Department, one (1) of the following:
1.
Local Master Plan approval; or
2.
Local conditional approval of a combined Master and Preliminary Plan; or
3.
A letter from an authorized municipal official (the Administrative Officer)
certifying compliance with local low impact development site planning and
design requirements as contained within the local zoning ordinance, land
development and subdivision Regulations, or other pertinent Regulations.
B.
Those municipalities that want to receive notification of Applications for
Freshwater Wetland Permits that are filed with the Department for projects that
are within the municipality’s boundaries shall provide the Department the names
and email addresses of two (2) staff contact persons designated to receive such
notification. The municipality shall update the contact names and email
addresses with the Department as applicable.
C.
The Department shall notify those municipal contact persons of the receipt of
such applications for projects that are proposed within its boundaries.
D.
The Department will allow fifteen (15) days for the municipality to provide written
comment to the Department on any such Application for a Freshwater Wetlands
Permit. An Application for a Significant Alteration shall follow procedures
described in § 2.12.4 of this Part.
2.8.12 Suspension of Application Process
A.
In any of the following circumstances, the Department may at its discretion
suspend the processing of an application, provided that it advises the applicant in
writing and where appropriate it conducts an investigation of the matter alleged in
any of the following circumstances:
1.
Where the property with respect to which an application has been
submitted is alleged to contain unauthorized alterations of a jurisdictional
area, discovered either during the review of an application or during
investigation of a complaint.
2.
Where the property with respect to which an application has been
submitted is the subject of any unresolved violation of the Rules, or which
is the subject of any non-compliance with a Department, administrative, or
judicial consent agreement, order, or judgment, or where the property
subject to unauthorized alterations is not restored to the satisfaction of the
Department.
3.
Where information provided on the application form or in support of the
application is misleading, false, erroneous, inconsistent with these Rules,
incomplete or non-responsive to deficiencies identified by the Department.
2.8.13 Recording of Permits
Whenever required by the terms and conditions of any permit or revised permit
issued by the Department, the applicant shall record the permit or revised permit
at his or her own expense in the land evidence records of the municipality or
municipalities in which the property subject to the permit lies.
2.9
Request to Determine the Presence of Jurisdictional Area,
Request to Verify Freshwater Wetland Edges, or Request for
Regulatory Applicability
2.9.1 Purpose
A.
An application may be made to the Department to request a determination
regarding:
1.
The presence of jurisdictional area on the property which is regulated
under the Act (§ 2.9.2 of this Part).
2.
The verification of the delineated edge of freshwater wetlands on the
property (§ 2.9.3 of this Part); or
3.
Whether the Rules apply to a proposed project, or not, or confirmation that
a project is exempt according to §§ 2.6 and 2.9.4 of this Part.
2.9.2 Request to Determine the Presence of Jurisdictional Area
A.
An applicant seeking a Request to Determine the Presence of Jurisdictional Area
must submit the following documents and adhere to the following requirements:
1.
A completed application form (§§ 2.8.2 and 2.8.3 of this Part);
2.
The appropriate fee (§ 2.8.9(A) of this Part); and
3.
A site plan of the subject property (§ 2.8.4 of this Part) or a tax assessor’s
map that includes a title block and locus map, drawn to a scale no smaller
than one inch (1”) equals one hundred feet (100’) (1” = 100'), with
sufficient fixed reference points is required. The tax assessor’s map must
be legible and clearly depict property boundaries. The site plan or tax
assessor’s map must not depict any proposed project or activities.
4.
If property boundaries are not clearly identifiable on the property itself, the
applicant must clearly identify those boundaries with labeled markers such
as flags or stakes.
B.
The Department will inspect the property and issue a determination stating
whether a jurisdictional area is present. The purpose of this determination is to
determine whether jurisdictional area is present on the property and the type of
such area, not to verify the specific location of any such area.
C.
Any determination regarding the presence of a jurisdictional area issued by the
Department in accordance with this Rule shall be valid for a period of five (5)
years from the date of issue; any such determination issued prior to the effective
date of these Rules is no longer valid.
2.9.3 Request to Verify Freshwater Wetland Edges
A.
An applicant seeking a Request to Verify Freshwater Wetland Edge must submit
the following documents and adhere to the following requirements:
1.
A completed application form (§§ 2.8.2 and 2.8.3 of this Part);
2.
The appropriate fee (§ 2.8.9(A) of this Part);
3.
A site plan of the subject property (§§ 2.8.4 and 2.8.5 of this Part)
prepared by a qualified professional (§ 2.8.7 of this Part), that identifies
the freshwater wetlands and their edges and their associated jurisdictional
area that the applicant requests the Department to verify; and
4.
Completed freshwater wetlands edge documentation forms (§ 2.9.3(E) of
this Part).
B.
Site plans submitted for Request to Verify Freshwater Wetland Edges must not
depict any proposed project or activities.
C.
The edge(s) of all freshwater wetlands should be identified by a qualified
professional as specified in guidance documents available from the Department,
and shall be delineated in accordance with the specifications set forth in § 2.21 of
this Part.
D.
Any delineation or identification of freshwater wetlands completed by a person
other than the Department, including by an applicant or applicant’s agent, shall
be valid only after review and written verification by the Department (see the
procedures outlined in § 2.21 of this Part).
E.
For verification purposes, the applicant must undertake the following steps:
1.
Identify each freshwater wetland edge that the applicant wishes to have
verified on the property, and record the edge on a site plan.
a.
The freshwater wetland edge on the property shall be flagged with
sequentially numbered or lettered flags, and the flags must be
placed at the freshwater wetland edge in sufficient numbers to
clearly identify the edge to be verified. The distance between flags
must allow for adequate visibility from one (1) flag to another during
the growing season.
b.
The freshwater wetland edge shall be surveyed and recorded on
the site plans showing the location and number/letter of the flag
corresponding with those flags at the site.
c.
In addition to the surveyed freshwater wetland edge, periodic
measurements (i.e., at least one (1) for every one hundred feet
(100’) of surveyed edge) must be recorded on the site plan,
indicating the distance from the surveyed edge to fixed reference
points on the property. Fixed reference points on the property shall
include, but are not limited to: stone walls, watercourses, roads,
trails, buildings, structures, fences, cut transects or traverse lines,
survey stakes with stations, or other features that allow
confirmation of the location of the flagged freshwater wetland edge
by field measurements.
2.
Identify the professional(s) conducting the delineation.
3.
Provide documentation on forms provided by the Department describing
the reasoning used to delineate a particular freshwater wetland edge or
any series of edges.
F.
Contour elevations, while helpful on site plans, are not required for Requests to
Verify Wetland Edges, except where:
1.
A request to verify the edge of the one hundred (100) year flood plain has
been made; or
2.
The freshwater wetland edge is located along or within a parcel exceeding
ten (10) acres.
G.
The Department will inspect the freshwater wetland edge(s) delineated by the
applicant and, if in substantial agreement with the documentation provided by the
applicant, confirm the presence of identified freshwater wetlands and the location
of their delineated edges and identify the associated buffer zones and
jurisdictional area.
H.
Any verification of a freshwater wetland edge or series of edges issued by the
Department shall be valid for a period of five (5) years from the date of issue. Any
such verification issued more than four (4) years prior to the effective date of
these Rules, or any determination issued regarding the presence or extent of
those areas previously defined as “perimeter wetland” or “riverbank wetland”
prior to the effective date of these Rules, is no longer valid.
I.
A Request to Verify Freshwater Wetlands Edges file shall be considered closed if
the applicant fails to answer any notification of application deficiency or any
request for additional information from the Department within a period of two (2)
years from the date of the deficiency letter or request.
2.9.4 Request for Regulatory Applicability
A.
An applicant seeking a Request for Regulatory Applicability should submit the
following documents and adhere to the following requirements:
1.
A completed application form (§§ 2.8.2 and 2.8.3 of this Part);
2.
The appropriate fee (§ 2.8.9(A) of this Part);
3.
A plan drawn to scale, illustrating and describing current and proposed
conditions based on measured distances, and including a clearly depicted
limit of clearing and disturbance, a locus map, and the location of any
freshwater wetlands, freshwater wetland edges, buffer zones or buffers of
concern;
4.
A written project description including the purpose, size, and location of
the project;
5.
A written description of how potential freshwater wetland impacts have
been avoided to the maximum extent possible; and
6.
Photographs depicting the current site conditions in the area of the
proposed work.
7.
While not required, a verified freshwater wetland edge will facilitate the
applicability decision, particularly where a determination of applicability, or
eligibility as an exempt activity, is dependent on a proposed project’s
distance from the freshwater wetland edge.
B.
The Department will review information provided by the applicant, and determine
whether the proposed project is exempt or otherwise will not alter the character
of any freshwater wetland, or whether further application is required in
accordance with these Rules. If the proposed project appears to involve
alteration to freshwater wetland or if the application is not clear or is missing
information, further application will be required.
2.10 General Permits
A.
The Department may issue a general permit in accordance with the following:
1.
Scope. The general permit shall cover projects and activities as described
in the permit within a jurisdictional area, as defined herein;
2.
Sources. The general permit shall regulate, within the scope described in
§ 2.10(A)(1) of this Part, projects or activities that:
a.
Involve the same or substantially similar types and areas of
alteration and impacts;
b.
Occur only within the jurisdictional area identified in the general
permit;
c.
Involve similar land uses; and
d.
In the opinion of the Department, are more appropriately authorized
under a general permit than under individual Freshwater Wetlands
Permits;
3.
The general permit shall define, identify and regulate specific eligible
projects or activities that may be proposed within a jurisdictional area;
4.
General permits may be issued, modified, revoked, and reissued or
terminated by the Department in accordance with applicable requirements
of these Rules;
a.
Freshwater Wetlands General Permits may be periodically issued,
modified or revoked in accordance with requirements of these
Rules and following a forty-five (45) day public notice and comment
period;
b.
The public notice shall be provided to the municipal contacts as
identified in accordance with § 2.8.11(B) of this Part, and it will also
be made available on the Department’s web page; and
c.
A Freshwater Wetlands General Permit shall be valid for a period of
five (5) years. Its renewal shall also be subject to a forty-five (45)
day public notice and comment period.
5.
An applicant may not proceed under a general permit until an application
has been made to the Department and written confirmation has been
received that a proposed project or activity is eligible for authorization
under the general permit; and
6.
The contents of the application shall be specified in the general permit and
shall require the submission of information necessary for adequate
program implementation, including at a minimum, the legal name and
address of the applicant, the location of the project site, and such other
information the Director may reasonably require under § 2.8 of this Part.
All applications shall be signed in accordance with § 2.8.3 of this Part.
B.
General Permit Application
1.
An application for a determination as to whether the proposed project or
activity is eligible for approval under the Freshwater Wetlands General
Permit may be submitted to the Department as described herein. This
Rule does not apply until such time that the Department has issued a
Freshwater Wetlands General Permit which covers the applicable activity
or project. An applicant seeking approval under a Freshwater Wetlands
General Permit must submit the following documents and adhere to all
requirements herein;
a.
A completed application form (§§ 2.8.2 and 2.8.3 of this Part);
b.
The appropriate fee (§ 2.8.9(A) of this Part);
c.
Site plans drawn to scale depicting the subject property and
proposed project (§§ 2.8.4 and 2.8.5 of this Part);
d.
All other written documentation as may be required by the
Freshwater Wetlands General Permit, including, a project narrative,
drainage computations, and floodplain documentation, to
demonstrate that the proposed project meets all requirements to be
considered eligible under the applicable General Permit.
C.
Upon receipt of an Application for a Freshwater Wetlands General Permit, the
Department will review all submitted materials to confirm that the proposed
activity or project is eligible for approval. If the project is eligible, the Department
will issue confirmation in writing.
D.
The Department reserves the right to request additional information as necessary
to confirm that a proposed project is eligible for a Freshwater Wetlands General
Permit.
E.
In the event a proposed project is not eligible for approval, the Department will so
notify the applicant and as appropriate offer the applicant an opportunity to
provide additional documentation and the balance of any fee as necessary to
proceed with review of the proposed project via the Application for a Freshwater
Wetlands Permit described in § 2.11 of this Part.
2.11 Application for a Freshwater Wetlands Permit
2.11.1 Purpose and Outcomes
A.
An Application for a Freshwater Wetlands Permit may be submitted to the
Department to receive a determination as to whether or not all applicable
standards specified in § 2.7.1 of this Part have been met or, if not, whether or not
a proposed project may be granted a variance from the standards without the
submittal of an Application for a Significant Alteration.
B.
The Department's review of an Application for a Freshwater Wetlands Permit
may result in one (1) of the following outcomes:
1.
Issuance of a permit, with conditions, for alteration of freshwater wetlands
including, if applicable, granting of a variance from standards specified in
§ 2.7.1 of this Part; or
2.
Issuance of a determination, in accordance with R.I. Gen. Laws §
2-1-22(a), that a significant alteration has been proposed and that a permit
may be sought only by filing an Application for a Significant Alteration (§
2.12 of this Part); or
3.
Issuance of a determination that a permit is not required, along with
conditions deemed necessary to ensure that this remains the case in the
future.
2.11.2 Application Submittal Requirements
A.
An applicant submitting an Application for a Freshwater Wetlands Permit must
submit the following documents and must adhere to the following requirements:
1.
Project Scope. The application must include and describe the entire
project proposed by the applicant. A request for a partial review or review
of fewer than all phases of a project may be considered by the
Department only if:
a.
The Department has previously reviewed the entire project and has
considered all project impacts on freshwater wetlands, buffers,
floodplains, areas subject to flooding and areas subject to storm
flowage; or
b.
As a condition of a prior determination, permit, consent agreement,
or consent judgment, the Department required separate
applications for individual portions of an overall project.
2.
Application Contents. A complete application must satisfy the general
requirements set forth in § 2.8 of this Part. The application shall include
the following:
a.
An original completed application form provided by the Department
(§§ 2.8.2 and 2.8.3 of this Part);
b.
The appropriate fee (§ 2.8.9 of this Part);
c.
A completed site plan, drawn to scale, that clearly depicts all
elements of the project and accurately depicts the freshwater
wetlands edges, associated buffers and buffer zones, floodplains,
areas subject to flooding and areas subject to storm flowage that
are on the property (§§ 2.8.4 and 2.8.5 of this Part); and
d.
Site work required to identify the proposed project (§ 2.8.6 of this
Part).
3.
Project Narrative. The applicant must provide a written overall description
of the proposed project, including the following:
a.
Project size, purpose, location and type;
b.
A description of all applicable jurisdictional area;
c.
Site history; and a description of the areas evaluated, including
nearby roadways and adjacent land uses;
d.
A description of the documented occurrence of rare native plants,
rare native animals or rare freshwater wetland types as specified on
lists maintained by the Department; and
e.
The project narrative must clearly document how the proposed
project has satisfied the standards specified in § 2.7.1 of this Part.
4.
Applicants for major land development or major subdivision projects, as
defined in R.I. Gen. Laws § 45-23-32, must submit, at the time the
application is submitted to the Department, documentation of one (1) of
the following:
a.
Local Master Plan approval; or
b.
Local conditional approval of a combined Master and Preliminary
Plan; or
c.
A letter from an authorized municipal official (the Administrative
Officer) certifying compliance with local low impact development
site planning and design requirements as contained within the local
zoning ordinance, land development and subdivision Regulations,
or other pertinent Regulations.
5.
As required, any reports and calculations documenting compliance with
the Engineering Requirements specified in § 2.11.2(A)(6) of this Part.
6.
Engineering Requirements
a.
Applications for proposed projects that increase impervious area or
that trigger the redevelopment standard specified in the Stormwater
Management, Design and Installation Rules, Subchapter 10 Part 8
of this Chapter, must submit supporting calculations, documents,
and reports to demonstrate that the proposed project meets or
exceeds the applicable review criteria set forth in § 2.11.3 of this
Part below and in § 2.7.2 of this Part. Applicants should refer to the
written evaluation – required elements in §§ 2.12.2(A)(4)(d)((3))
through ((5)) of this Part as applicable.
b.
Applications for proposed projects on individual residential lots of
record may use the Rhode Island Stormwater Management
Guidance for Individual Single-Family Residential Lot Development
in place of the Stormwater Management, Design and Installation
Rules, Subchapter 10 Part 8 of this Chapter.
c.
Applications for projects that propose one (1) acre or more of land
disturbance must include a Soil Erosion and Sediment Control Plan
as specified in the Department’s General Permit for Storm Water
Discharge Associated with Construction Activity.
d.
Applications for projects that propose to place fill or structures
within a floodplain or floodway, or which otherwise may alter the
rate at which flood water is stored by any freshwater wetland, must
include supporting calculations, documents, and reports to
demonstrate that the proposed project meets or exceeds the review
criteria set forth in § 2.7.2 of this Part. Applicants are referred to the
written evaluation – required elements in § 2.12.2(A)(4)(d) of this
Part as applicable.
e.
The Department reserves the right to require additional information
in order to satisfy the review criteria or to waive any requirement if it
is determined that the information is not applicable.
7.
Variance from Standards. If a proposed project does not meet all of the
standards specified in § 2.7.1 of this Part, an applicant must provide a
narrative description documenting how the proposed project will satisfy the
variance criteria specified in § 2.7.3 of this Part.
2.11.3 Review by the Department
A.
On-Site Review and Evaluation. An Application for a Freshwater Wetlands Permit
is considered to be a preliminary determination, and the Department will act on
an Application for a Freshwater Wetlands Permit only following an on-site review
and a preliminary evaluation of the project and its anticipated impacts to the
natural characteristics, functions, or values of the subject freshwater wetlands,
buffers, floodplains, areas subject to flooding and areas subject to storm flowage.
B.
Permit Issuance. In order to issue a permit, the Department must be satisfied that
a proposed project will not result in a significant alteration to freshwater wetlands,
buffers, floodplains, areas subject to flooding or areas subject to storm flowage.
1.
A project which is determined by the Department to meet or satisfy all
standards specified in § 2.7.1 of this Part shall be presumed to not result
in a significant alteration to freshwater wetlands, buffers, floodplains,
areas subject to flooding or areas subject to storm flowage.
2.
If a project is determined by the Department not to meet the standards
specified in § 2.7.1 of this Part, a permit may be issued only when the
Department is satisfied that:
a.
All variance criteria specified in § 2.7.3 of this Part have been
satisfied; and
b.
The project will not result in a significant alteration to freshwater
wetlands, buffers, floodplains, areas subject to flooding or areas
subject to storm flowage (see § 2.11.3(C) of this Part);
C.
Significant Alteration Determination. In determining whether a proposed project
will result in a significant alteration to freshwater wetlands, buffers, floodplains,
areas subject to flooding or areas subject to storm flowage, the Department will
consider the following criteria, as well as the review criteria in § 2.7.2 of this Part.
A proposed alteration may be considered significant whenever any one (1) of the
following conditions exist:
1.
A project appears to propose a random, unnecessary, or undesirable
alteration to freshwater wetlands, buffers, floodplains, areas subject to
flooding or areas subject to storm flowage;
2.
A project appears to alter the character, functions or values of any
freshwater wetlands, buffer, floodplain, area subject to flooding or area
subject to storm flowage in a way that could result in the following:
a.
More than a minimal change of any portion of any freshwater
wetland, river or stream resulting in a conversion from wetland to
upland;
b.
The detrimental modification of the biological, chemical or
hydrologic characteristics of any freshwater wetlands or buffer
areas which could reduce the natural values associated with the
freshwater wetland or buffer;
c.
More than minimal displacement of any flood waters onto or into
property owned by others;
d.
Increased flooding by a change in runoff characteristics or
hydrology;
e.
Reduction of the groundwater recharge or discharge value of any
freshwater wetland or buffer;
f.
Reduction of river or stream flows as a result of diversion or
withdrawal of water;
g.
Permanent change or conversion from one (1) habitat type in a
freshwater wetland or buffer to another; or
h.
The disturbance or destruction of any rare species or rare
freshwater wetland type or the degradation of habitat for rare
species.
3.
A project proposes temporary alterations which over time may cause
significant permanent alterations to freshwater wetlands or buffers and
their functions and values.
4.
Any individual alteration that may, when evaluated cumulatively with other
alterations, cause significant impacts to freshwater wetlands, buffers or
floodplains and their functions and values.
5.
A project involves a variance to standards and does not meet all the
criteria to be granted a variance as specified in § 2.7.3 of this Part.
2.11.4 Permit Requirements, Conditions and Renewals
A.
The Department may grant a permit in response to an Application for a
Freshwater Wetlands Permit, without first requiring an Application for a
Significant Alteration, provided, however, that any such permits shall only be
issued after the Department has determined that all elements outlined in §
2.11.3(C) of this Part have been met and shall be subject to such conditions as
the Department may require to protect the freshwater wetlands, buffers and
floodplains.
B.
Any applicant or subsequent transferee receiving a permit under this Rule shall
comply with all conditions of the permit and all provisions of the Act and these
Rules. Any non-compliance with the permit violates the Act and these Rules, and
constitutes sufficient grounds for an enforcement action.
C.
The permittee or subsequent transferee of the property to which the permit
relates is responsible for the proper installation, operation, maintenance and
stability of any mitigative features, facilities, and systems of treatment and control
that are installed or used to comply with these Rules and any terms and
conditions of the permit and to prevent harm to freshwater wetlands, buffers,
floodplains, areas subject to flooding and areas subject to storm flowage. All
applicants receiving a permit or subsequent transferees of the property shall
avoid or minimize adverse impacts to any freshwater wetlands, buffers,
floodplains, areas subject to flooding and areas subject to storm flowage and
their functions and values, both during and after permitted activities.
D.
Unless specified in writing by the Department, any decision issued in response to
an Application for a Freshwater Wetlands Permit applies only to the proposed
project that is described in the Application and its supporting documentation,
including the requisite site plans. Site plans shall bear a stamp of approval,
signed by the Department, as well as the date of the permit letter and the
assigned application number.
E.
Any permit issued in response to an Application for a Freshwater Wetlands
Permit shall be valid for a period of five (5) years from the date of issuance.
1.
A permit shall be renewable by the permit holder for one (1) additional one
(1) year period from the date of expiration (with the exception of permits
granted under a Joint OWTS/Freshwater Wetlands Application which
cannot be renewed) provided that:
a.
The permit holder and project are in compliance with the permit;
and
b.
The permit holder submits an Application for Permit Renewal that
meets the requirements of § 2.14.2 of this Part.
F.
Upon completion of the permitted project, the permit does not need to be
renewed by the permit holder.
G.
Unless specifically limited by the terms and conditions of the permit, any permit
issued by the Department, that relates to an approval of a project or a
determination that the Act does not apply to a specific project, prior to April 7,
1994, is expired.
2.11.5 Department's Decision – Notification
The Department will mail notice of its decision to the applicant and the applicant's
representative, if any, consistent with R.I. Gen. Laws § 2-1-22(g) and § 2.8.2(C)
of this Part. At least once each month, the Department will also provide copies of
such decisions to the city or town clerk, the zoning board, the planning board, the
building official and the conservation commission in the city or town within which
the project is located.
2.11.6 Application Closure
A.
The Department's consideration of any Application for a Freshwater Wetlands
Permit shall be deemed to have terminated, and the applicant's file shall be
deemed closed, when any of the following circumstances have occurred:
1.
The applicant fails to answer any notification of application deficiency or
request for additional information by the Department within a period of one
(1) year from the date such notification or request is issued; or
2.
The Department is notified of a change of ownership during the
processing of the application, and the new owner does not comply with §
2.8.3(F) of this Part within sixty (60) days; or
3.
The Department has issued a permit or a written determination that the
Act and these Rules do not apply, or that a proposed project represents a
significant alteration.
2.12 Application for a Significant Alteration
2.12.1 Purpose
A.
An Application for a Significant Alteration will be required if a significant alteration
is proposed. Such an application is subject to the application procedures and
requirements as set forth in R.I. Gen. Laws § 2-1-22 and within these Rules.
B.
A significant alteration results from a project that:
1.
Because of its area, scope or duration, appears to represent more than a
minimal change in or modification to the natural characteristics, functions
or values of any freshwater wetland, buffer, floodplain, area subject to
flooding or area subject to storm flowage;
2.
May be detrimental to the basic natural capabilities or values associated
with such freshwater wetlands, buffers, floodplain, area subject to flooding
or area subject to storm flowage; or
3.
Appears to be random, unnecessary or undesirable.
C.
Prior to filing an Application for a Significant Alteration, an applicant may file an
Application for a Freshwater Wetlands Permit to determine whether or not a
project appears to represent a significant alteration to freshwater wetlands,
buffers, floodplains, areas subject to flooding or areas subject to storm flowage.
2.12.2 Application Submittal Requirements
A.
An applicant seeking a permit for a significant alteration must adhere to the
following requirements and submit all written evaluations and documentation as
set forth in § 2.12.2(A)(3) of this Part.
1.
Project Scope. An Application for a Significant Alteration must include and
describe the entire project proposed by the applicant. A request for a
partial review or a review of fewer than all phases of a project may be
considered by the Department only if:
a.
The Department has previously reviewed the entire project and
considered all project impacts on freshwater wetlands, buffers,
floodplains, areas subject to flooding and areas subject to storm
flowage; or
b.
As a condition of a prior determination, permit, or consent
agreement, or consent judgment, the Department required separate
applications for individual portions of an overall project.
2.
Application Content. A completed Application for a Significant Alteration
must comply with the general provisions set forth in § 2.8 of this Part as
well as the following specific requirements:
a.
An original completed application on forms provided by the
Department (see §§ 2.8.2 and 2.8.3 of this Part);
b.
Site plans prepared and stamped by a Rhode Island Registered
Professional Engineer which accurately and clearly depict the
project and provide, in the opinion of the Department, the correct
location, extent, and type of all freshwater wetlands, buffers, buffer
zones, floodplains, areas subject to flooding and areas subject to
storm flowage within and near the project (§§ 2.8.4 and 2.8.5 of this
Part);
c.
A fee (§§ 2.8.8 and 2.8.9 of this Part);
d.
Proof of ownership in the form of a current certified copy of the
deed of the subject property;
e.
A current list of the property owners whose properties lie within two
hundred feet (200’) of the proposed project. This list of property
owners must contain the current mailing address of each property
owner and must be accompanied by a separate map drawn to
scale of not less than one inch (1”) to one hundred feet (100’) (1” =
100’) showing the properties, lot numbers, and corresponding
owners within a radius of two hundred feet (200’) of the outermost
boundary of the area of the proposed project. For the purposes of
determining which properties are within two hundred feet (200’) of
the proposed project, the applicant shall measure from the
outermost boundaries of the proposed wetland alterations. Such
freshwater wetlands alteration boundaries must include at least the
following:
(1)
The extent of all physical disturbance in jurisdictional area;
(2)
The extent of any impoundment or raising of water
elevations of six inches (6”) or more in freshwater wetlands,
buffers or floodplain;
(3)
The extent of drainage of freshwater wetlands, including
lowering of surface and sub-surface water elevations;
(4)
The relocation of flowing bodies of water or watercourses,
including the original and proposed locations; and
(5)
The expansion of any jurisdictional area into adjacent
properties.
f.
All written evaluations and documentation as set forth in §
2.12.2(A)(3) of this Part;
g.
Following notification from the Department, the required number of
full-size and reduced site plans, drawn to scale and legible, which
are necessary to provide to the municipality, the abutters, and other
interested parties;
h.
Completed field work that includes field reference markers on the
property and points on the site plans sufficient to outline the limits
of the project and to identify the edge of the jurisdictional area
within the project in a manner sufficient for the Department to
properly complete its evaluation (see § 2.8.6 of this Part).
i.
Applicants for major land development or major subdivision
projects, as defined in R.I. Gen. Laws § 45-23-32, must submit, at
the time the application is submitted to the Department,
documentation of one (1) of the following:
(1)
Local Master Plan approval; or
(2)
Local conditional approval of a combined Master and
Preliminary Plan; or
(3)
A letter from an authorized municipal official (the
Administrative Officer) certifying compliance with local low
impact development site planning and design requirements
as contained within the local zoning ordinance, land
development and subdivision Regulations or other pertinent
Regulations.
3.
Written Documentation and Evaluation. All applicants must provide a
written evaluation including all of the following elements:
a.
A Table of Contents that lists all section titles and their
corresponding page numbers.
b.
A project description that includes:
(1)
The project size, purpose, location, and type;
(2)
A description of all applicable jurisdictional area;
(3)
Site history and overall areas evaluated including nearby
roadways and adjacent land uses; and
(4)
A description of the documented occurrence of rare native
plants, rare native animals or rare freshwater wetland types
as specified on lists maintained by the Department.
c.
A narrative description documenting how the proposed project will
satisfy the variance criteria specified in § 2.7.3 of this Part.
d.
A written Evaluation of Functions, Values, and Impacts (§
2.12.2(A)(4) of this Part) that describes the evaluation
methodology, qualifications of professional(s) performing the
evaluation; identification of regulated jurisdictional area; description
of freshwater wetland functions, values, and impacts, identification
of the proposed measures to reduce such impacts; conclusions;
and any literature citations as set forth in § 2.12.2(A)(4)(f) of this
Part.
4.
Evaluation of Functions, Values, and Impacts. All applicants must describe
those functions and values provided and maintained by the subject
freshwater wetlands, buffers, floodplains, areas subject to flooding and
areas subject to storm flowage; describe and assess any anticipated
impacts to their functions and values; and describe all structural or non-
structural best management practices, best available technologies,
schedules, and management plans which will be employed to avoid, or
minimize impacts to freshwater wetlands, buffers, floodplains, areas
subject to flooding and areas subject to storm flowage to the maximum
extent possible. This written evaluation must clearly and fully explain how
the proposed project complies with all applicable review criteria set forth or
referred to in § 2.7.2 of this Part and must describe the evaluation
methodology, the qualifications of persons involved in the evaluation, and
must describe all jurisdictional area.
a.
Evaluation Methodology: Identify the scientific techniques and
methods which were used to complete the evaluation, including the
dates and times of observations and field studies and the result of
such observations and field studies. Identify each specific
evaluation methodology that was used, and identify, describe, and
explain any deviation from the methodology, and any assumptions
made with a specific methodology. Identify and describe any
limitation placed upon the study or evaluation which could affect the
outcome of the results.
b.
Qualifications: List the names and qualifications of each person
involved in the evaluation. Assessment of functions and values and
impacts may require input by more than one (1) qualified
professional consultant or more than one (1) individual familiar with
the specific functions or values of the freshwater wetlands, buffers,
floodplains, areas subject to flooding or areas subject to storm
flowage. The names, addresses and backgrounds of any
individuals consulted for the evaluation must be submitted as well
as a description of the extent of their participation.
c.
Jurisdictional Area: Describe all jurisdictional area on-site as well as
any off-site freshwater wetlands that are hydrologically connected
to the on-site freshwater wetland(s) and identify all freshwater
wetlands, buffers, floodplains, areas subject to flooding and areas
subject to storm flowage evaluated, including any areas of potential
impact associated with the project within a jurisdictional area.
d.
In addition to the evaluation elements required above, the applicant
must address the following requirements in the written evaluation:
(1)
Wildlife and Wildlife Habitat
(AA)
Characteristics. Provide the size of the freshwater
wetland(s), and describe the topography,
microtopography (i.e., leaf litter, mound and pool,
exposed soil, rocks), soils, hydrology, dominant plant
communities and vegetation in each stratum (i.e.,
tree, shrub, and herbaceous layers) of the freshwater
wetlands and buffer or, if a pond, vernal pool or
watercourse, the dominant aquatic vegetation; identify
and describe any standing or flowing water bodies,
water quality, nearby land uses within one hundred
fifty feet (150’) of the edge of the subject freshwater
wetlands and buffers; and identify other freshwater
wetland(s) which are hydrologically connected to the
on-site freshwater wetland(s) with distances between
freshwater wetlands provided;
(BB)
Wildlife Indicators. Detail and describe the indications
of wildlife use (e.g., direct observation of wildlife or
indicators such as burrows, scat, tree cavities, tracks,
trails, nests, scrapes, and any other observable signs
or vocalizations). Detail those species known to be
present or that can be anticipated to use the habitat
that is present. Note the presence of wildlife habitat
which is likely to be used by game or non-game
species;
(CC)
Values. Identify and describe the current and potential
ability of the freshwater wetlands and buffers to
provide or maintain the functions and values relating
to wildlife and wildlife habitat; and
(DD)
Proposed Impacts. Identify and describe the physical,
chemical and biological impacts, both short-term and
long-term, to the wildlife habitat associated with the
freshwater wetlands and buffers resulting from the
project which include, but are not limited to: impacts
to travel, nesting, feeding, spawning, resting, nursery
or brood rearing, escape cover, seasonal breeding,
migration, and over-wintering for resident, seasonal or
transient species; impacts to any rare species;
impacts to any game or non-game species managed
by State or Federal fish and game agencies; impacts
to wildlife habitat functions and values due to changes
associated with lighting, noise, temperature, water
quality, air quality, water velocity, flow patterns, water
elevations, water temperature, fragmentation of
habitat, predator/prey relationships, composition of
plant or animal communities, intrusion of exotic or
invasive species; whether the project may result in
displacement, reduction or extirpation of any wildlife
species; and whether the project will result in any
cumulative loss of wildlife habitat, wildlife species or
wildlife populations.
(2)
Recreation and Aesthetics
(AA)
Characteristics. Provide the size of the freshwater
wetland(s), and describe topography, soils, hydrology,
dominant plant communities and vegetation in each
stratum (i.e., tree, shrub, and herbaceous layers) of
the freshwater wetlands and buffers, or if a pond,
vernal pool or watercourse, the dominant aquatic
vegetation; identify and describe any standing or
flowing water bodies, water quality, nearby land uses
within one hundred fifty feet (150’) from the edge of
the subject freshwater wetland(s) and buffers, and
identify other freshwater wetland(s) which are
hydrologically connected to the on-site freshwater
wetland(s) with distances between freshwater
wetlands provided. Also, identify and describe the
location of the freshwater wetland(s) and buffers and
the availability of public access and viewing sites;
(BB)
Values. Identify and describe the current and potential
ability of the freshwater wetlands and buffers to
provide or maintain the functions and values as
defined herein relating to recreation and aesthetics;
and
(CC)
Proposed Impacts. Describe the probable individual
and cumulative impacts of the project on the
recreational and aesthetic values of the freshwater
wetlands and buffers, and any potential reduction in
the current or potential ability of the freshwater
wetlands and buffers to provide aesthetic values and
active or passive recreational activities to the public.
Consider the impacts to: wildlife habitat; rare species;
vegetation and plant communities; water quality;
water temperature, water velocity, water volume and
water elevation; wildlife which can be fished, hunted,
trapped, observed, heard, studied, or photographed;
open space value; public access and public's view of
the wetland; the freshwater wetlands’ or buffer’s
prominence as a distinct feature in the local area; the
use and enjoyment of watercourses or water bodies
within, adjacent to, or nearby the project; and the
freshwater wetlands’ functions and values as a rare
freshwater wetland type.
(3)
Flood Protection
(AA)
Drainage Characteristics. Identify and describe the
drainage characteristics of the site of the project,
including any areas contributing stormwater runoff to
freshwater wetlands or buffers; describe the drainage
characteristics of any surface water flows, including
any flowing bodies of water or areas subject to storm
flowage within the project site, or within any
freshwater wetlands on or off-site that may be
impacted by the project; and identify and describe the
extent of flooding up to and including a one hundred
(100) year frequency storm flood event. Include a
map which delineates the watershed of: the site of the
project; any freshwater wetlands or buffers receiving
water from the site of the project; and any off-site
freshwater wetlands or buffers which may be
impacted by the project.
(BB)
Values. Identify and describe the functions and values
of the freshwater wetlands, buffers, floodplains, areas
subject to flooding and areas subject to storm flowage
relating to their ability to temporarily store or meter out
flood waters from storm events, and to accommodate
surface water and drainage into, out of, between,
through or within these jurisdictional area under pre-
project conditions.
(CC)
Analysis of Proposed Impacts.
(i)
Projects proposing changes in run-off towards
freshwater wetlands and buffers: Submit a
stormwater analysis for pre and post-project
runoff rates based upon the one (1) year, ten
(10) year, and one hundred (100) year, twenty-
four (24) hour, Type III storm events. The
analysis must be performed using the
methodologies as allowed and contained in the
Stormwater Management, Design and
Installation Rules, Subchapter 10 Part 8 of this
Chapter. In the event that the stormwater
analysis reveals any increase above pre-
project runoff rates, or any increase in peak
flood elevations within receiving
waters/wetlands, identify and describe the
impact such proposed increase may have upon
all functions and values as defined herein.
Describe the anticipated impacts to the
freshwater wetlands and buffers using
supporting calculations, data, diagrams,
graphs, and observations.
(ii)
Projects proposing changes in drainage
characteristics of freshwater wetlands, buffers,
floodplains, areas subject to flooding or area
subject to storm flowage or affecting their
ability to store, meter out, or reduce the
impacts of flooding and flood flows: Identify
and describe all project components that may
decrease the ability of freshwater wetlands,
buffers, floodplains, areas subject to flooding or
areas subject to storm flowage ability to meter
out flood waters or decrease their ability to
maintain surface flows and natural drainage
characteristics. Such project components
include, but are not limited to: changes in
topography from filling or excavation; changes
in vegetative characteristics; additions of
buildings or structures; and piping, culverting,
bridging, excavating, channelization,
relocation, filling, damming or diking. Identify
and describe the impacts the project may have
upon all freshwater wetlands functions and
values. Describe the anticipated impacts of all
projects using supporting calculations, data,
diagrams, figures, graphs or observations as
appropriate. Such impact evaluation must be
supported by a flood flow analysis based upon
the one (1) year, ten (10) year, and one
hundred (100) year, twenty-four (24) hour,
Type III storm event for pre and post-project
conditions.
(DD)
Compensation for Loss of Flood Storage. Projects
which propose filling or placement of structures in a
floodplain or area subject to flooding may provide
compensatory flood storage in order to comply with
the review criteria as set forth in § 2.7.2 of this Part by
excavation or by permanently eliminating structures
which currently displace flood waters; however,
compensatory storage may not be proposed beneath
or within the confines of any building or structures.
Where applicable, compensatory flood storage must
be proposed in accordance with the following
requirements:
(i)
The volume of compensatory flood storage
must be equal to or greater than the volume of
floodwaters displaced by the project on a foot-
by-foot elevation basis unless otherwise
specified by the Department;
(ii)
The compensation area must have an
unrestricted hydraulic connection to the
affected floodplain and provide the same rate
of flood storage capture and discharge over the
course of the flood event as in pre-project
conditions;
(iii)
Compensatory storage must be located within
the same reach of the river or flowing body of
water (i.e., between the nearest features
controlling the flood water elevations upstream
and downstream from the proposed
displacement area) as the project involving
flood water displacement, and must be located
as close to the proposed displacement area as
possible;
(iv)
Creation of compensatory storage must
precede or occur simultaneously with the
construction of any portion of the project which
displaces flood waters;
(v)
Where the applicant proposes a compensatory
storage area on property owned by others, the
applicant must submit a written agreement
between such landowner and the applicant
wherein the landowner agrees to convey an
easement or other property interest or right to
the applicant allowing compensatory storage,
and to permanently maintain such area for
flood storage purposes in the event that the
Department approves the applicant's project;
and
(vi)
The design must include all features and best
management practices to ensure that impacts
to the functions and values of other freshwater
wetlands and buffers have been mitigated.
(4)
Groundwater and Surface Water Supplies
(AA)
Hydrologic Characteristics. Identify and describe the
current hydrologic characteristics, including both
surface and groundwater flows, within and to any
freshwater wetlands or buffers that may be affected
by the project. Identify the pre-project elevation range
of the surface or groundwater on a seasonal and
annual basis in the freshwater wetlands and buffers
and in the vicinity of the proposed alteration. Describe
the extent to which the surface or groundwater levels
deviate from long-term ranges and averages. Include
a map delineating the watershed of: the site of the
project; any freshwater wetlands or buffers receiving
water from such site; and any off-site freshwater
wetlands or buffers which may be impacted by the
project.
(BB)
Functions and Values. Identify and describe the
functions and values of the freshwater wetlands and
buffers relating to surface water or groundwater
supplies.
(CC)
Proposed Impacts. Identify and describe all
components and activities of the project that may
directly or indirectly divert, reduce or contain surface
or groundwater flow to, away from, or within any
freshwater wetlands or buffers, including a description
of the volumes of water which may be diverted,
reduced or contained, and the rate and duration of
such diversion, reduction or containment. Identify and
describe the impacts the project may have upon all
functions and values. Describe the anticipated
impacts using supporting calculations, data, figures,
diagrams, graphs and observations as appropriate.
(5)
Water Quality
(AA)
Drainage Characteristics. Identify and describe the
current drainage characteristics of the area of the
project, including any on or off-site freshwater
wetlands that may be impacted by the project.
(BB)
Functions and Values. Identify and describe the
functions and values of the freshwater wetlands and
buffers relating to water quality; and describe the
present water quality classification and impairment
status of any water body as set forth by the
Department. Include a description of the water quality
conditions of all freshwater wetlands within the project
area, as well as any off-site freshwater wetlands that
may be affected by the project. Identify how the
project will avoid contributing to a violation of the
standards or contributing to any further degradation of
currently degraded surface or groundwater resources.
(CC)
Water Quality Analysis
(i)
As may be required in accordance with the
Stormwater Management, Design and
Installation Rules, Subchapter 10 Part 8 of this
Chapter , submit a pollutant loading analysis
which quantifies the pollutants in stormwater
runoff for both pre and post-project conditions
by utilizing the methodology contained in the
Stormwater Management, Design and
Installation Rules, Subchapter 10 Part 8 of this
Chapter, or by another widely accepted
method. If the methods used incorporate the
best available technology, but are different
from those in the manual or deviate from its
guidelines, the applicant must describe why
they were used and submit and document all
data, calculations, and methods used. The
acceptance of these alternative methods is
subject to Department approval; and
(ii)
Submit a water quality analysis which
quantifies the pollutant concentrations or
loadings from Land Uses with Higher Potential
Pollutant Loads (LUHPPLs) as defined in the
Stormwater Management, Design and
Installation Rules, Subchapter 10 Part 8 of this
Chapter, as well as plant nurseries and other
land uses involving use of fertilizers,
herbicides, pesticides, for both pre and post-
project conditions by utilizing one (1) or more
accepted and scientifically supported
methodologies. The acceptance of the
method(s) utilized for such calculations is
subject to Department approval.
(DD)
Proposed Impacts. Identify and describe all
components and activities of the proposed project that
may result in any degradation of water quality
associated with freshwater wetlands by increasing
pollutant sources; nutrient loading; increasing
turbidity; decreasing oxygen; altering temperature
regimes; reducing stream or river flows; altering the
freshwater wetlands’ or buffer’s ability to retain or
remove nutrients; or by withdrawing water from or
near any freshwater wetlands. Identify and describe
the impacts the proposed project may have upon all
functions and values as defined herein. Describe the
anticipated impacts to the freshwater wetlands and
buffers using supporting calculations, data, figures,
diagrams, graphs and observations.
(6)
Soil Erosion and Sediment Control
(AA)
Identify and describe all proposed land disturbance
activities; current site conditions, including soil
conditions and topography; drainage characteristics of
the site of the proposed project; any critical erosion
areas; and all proposed non-structural and structural
temporary and permanent erosion and sediment
control methods. Further, describe how and why such
erosion and sediment control measures will protect
functions and values and meet the review criteria as
set forth in § 2.7.2 of this Part. The written evaluation
must include supporting calculations, data, figures,
diagrams, graphs and observations. For projects
involving one (1) acre or more of land disturbance,
this requirement must be satisfied with the submittal
of a Soil Erosion and Sediment Control Plan as
outlined in the Department’s General Permit for Storm
Water Discharge Associated with Construction
Activity.
e.
Conclusion. Identify and detail how the project meets all review
criteria as set forth in § 2.7.2 of this Part. Describe any measures to
reduce impacts which were considered and rejected and indicate
why they cannot or should not be employed.
f.
Literature Citations. Provide citations for all literature used to
support the evaluation.
2.12.3 Completeness Determination
Prior to the public notice of any Application for a Significant Alteration, the
Department will review the application to determine whether or not it is a
completed application for public notice purposes only (see § 2.12.2(A)(2) of this
Part). Once an application is determined to be complete for public notice
purposes, no further information may be submitted by the applicant in support of
the application unless such information is requested by the Department.
2.12.4 Public Notice and Participation – Public Hearings
A.
Public Notice
1.
Notice: An Application for a Significant Alteration shall be publicly noticed
in accordance with R.I. Gen. Laws § 2-1-22(a).
2.
Public Comment – Period of Time: Within fourteen (14) days after the
receipt of an application that has been determined by the Department to
be complete, the Department shall send a notice of the application to the
appropriate parties, as defined in R.I. Gen. Laws § 2-1-22(a). The public
notice period shall commence upon the day of mailing of the notice and
end forty-five (45) calendar days thereafter, or as extended to
accommodate weekends or holidays.
3.
Notice for Public Comment – Delivery: Notice of the application shall be
made by first class mail or, if available and appropriate, e-mail. The
Department will rely upon those names and addresses provided by the
applicant to notify abutting property owners. Prior to the notice, the
applicant must ensure that the list of abutters is current and accurate.
4.
In the case of a full or partial removal of a dam as described in § 2.8.3(D)
of this Part, impounding a flowing body of water, proposed for the purpose
of habitat improvement, restoration, or dam safety, the Department may
require the applicants to place, at their own expense, a public notice of the
proposed project in a daily or weekly newspaper with circulation in the
area of the project. This notice must allow at least a thirty (30) day period
for comment to the Department, ending no later than the end date of the
notice specified in accordance with § 2.12.4(A)(2) of this Part.
B.
Content
1.
Notice for Public Comment:
a.
The notice shall include the name of the applicant seeking
permission to alter, the applicant’s address, the purpose of the
project as described by the site plans, the jurisdictional area to be
altered, the proposed alterations, a reduced set of site plans
provided by the applicant, and the date upon which the forty-five
(45) day comment period shall end.
b.
The Department shall furnish the notice and one (1) full-size copy
of the site plans to the city or town council and the city or town clerk
within whose borders the project is proposed. The Department shall
request that the city or town clerk maintain the notice, site plans
and application within that office for public viewing during the forty-
five (45) day notice period.
2.
Public Notice – Disclaimer: Notice of the application is not a notice of
approval or any intent by the Department to approve or issue a permit for
the project.
3.
Review During Public Notice: The Department will not make a decision on
an application as to whether any alteration is random, unnecessary, or
undesirable during the public notice period.
C.
Public Comments
1.
Comments filed with the Department will be considered and reviewed if
they are in writing, are legible, contain a discernable name and address of
the objector, are signed and are received during the forty-five (45) day
notice period. The commenter must identify the application number noted
in the public notice or must otherwise identify or reference the project
about which they are objecting. The Department will not consider or
review comments to projects which do not contain sufficient information to
properly relate the objection to a specific application.
2.
A comment will be considered timely filed if received within the forty-five
(45) day public comment period. If the last day of the forty-five (45) day
notice period ends on a weekend or holiday, the end of the public notice
period will be extended through the next working day.
3.
The Department shall determine whether a comment is an objection of a
substantive nature. Pursuant to R.I. Gen. Laws § 2-1-22, a determination
that a comment is a substantive objection will necessitate a public hearing.
All comments received by the Department will remain part of the
application file. An objection of a substantive nature is any written
comment offered in opposition to a project that:
a.
Relates to the functions and values of the freshwater wetlands,
buffers, floodplains, areas subject to flooding or areas subject to
storm flowage;
b.
Has not been clearly addressed by the applicant in his or her
application;
c.
Has not been assessed by the Department during its review of the
application; and
d.
Cannot be resolved by the Department’s evaluation of the
application.
4.
The applicant will be notified by certified mail if a comment is determined
to be a substantive objection. The applicant may then withdraw the
application or, if the applicant wishes to proceed, must authorize the
scheduling of a public hearing in writing and must submit a fee to cover
the costs of the public hearing (§§ 2.8.8 and 2.8.9(D) of this Part). The
Department will schedule the public hearing under the provisions of R.I.
Gen. Laws § 2-1-22 following receipt of the fee and authorization from the
applicant. The written authorization and fee must be received by the
Department within thirty (30) days following the receipt of notification from
the Department of a substantive objection. If written authorization and the
required fee are not received within the thirty (30) days following
notification of a substantive objection, the Department will consider the
application withdrawn. The Department will terminate any further action on
the subject application and will not re-open the application at a later date.
In this case, a new application would be required.
5.
An objector may withdraw, in writing, the objection any time prior to the
scheduling of a public hearing. The Department will notify the applicant if
any substantive objection is withdrawn. If all substantive objections are
withdrawn in sufficient time to prevent the notice of a public hearing, the
public hearing will not be held, any remaining hearing fees will be
refunded to the applicant, and the Department will proceed with a decision
on the application.
6.
An applicant may withdraw, in writing, the authorization for a public
hearing any time prior to the scheduling of a public hearing. Upon receipt
of notification from the applicant that authorization for a public hearing has
been withdrawn, the Department will consider the application withdrawn
and shall terminate any further action on the application. Any remaining
hearing fees will be refunded to the applicant.
D.
Public Hearings
1.
When necessary, in accordance with R.I. Gen. Laws § 2-1-22, the
Department will hold public hearings on proposed alterations to freshwater
wetlands when a request for such hearing is made in accordance with §
2.12.4(C)(4) of this Part. The purpose of such hearings shall be to elicit
comments from the public regarding the impact of the proposed alteration
on the functions and values provided by the subject freshwater wetlands,
buffers, floodplains, areas subject to flooding and areas subject to storm
flowage. Such hearings are not adjudicatory, evidentiary hearings, but
they are held to obtain comments to assist the Department in its review of
the application.
2.
Public hearings will be held at a place designated by the Department.
When a public hearing is required, such place shall be reasonably
convenient to the site of the project.
3.
The time of hearing shall be designated by the Department.
4.
The presiding officer of a public hearing shall be the Department’s or the
Director’s designee.
2.12.5 Decision on Application for a Significant Alteration
A.
General
1.
Consistent with R.I. Gen. Laws §§ 2-1-22(b) and (c), the Department
insofar as possible will issue a decision in response to an Application for a
Significant Alteration forty-two (42) days after the end of the public
comment period or, if applicable, the public hearing.
2.
Applicants shall be notified in writing of the Department's decision by
certified mail. The Department shall notify the applicant's attorney or other
designated representative, if any, by first class mail or e-mail. Any person
who objects in writing during the forty-five (45) day public comment period
shall be notified of the decision by first class mail or e-mail if the objector
provides the Department with a mailing address.
B.
Decision to Deny
1.
Approval of a proposed alteration to any freshwater wetland, buffer,
floodplain, area subject to flooding or area subject to storm flowage will be
denied by the Department if the project as proposed does not satisfy the
review criteria (§ 2.7.2 of this Part) contained herein or would result in a
random, unnecessary, or undesirable alteration of a freshwater wetland,
as those terms are defined herein, since such alterations are not in the
best public interest. Such projects are therefore inconsistent with R.I. Gen.
Laws §§ 2-1-18 and 2-1-19 and these Rules, and the Department will
deny such applications in accordance with R.I. Gen. Laws § 2-1-21.
2.
The decision to deny approval shall be in the form of a letter which will
state the reasons for denial.
C.
Decision to Permit and Grant Variance. The Department shall issue a permit and
grant applicable variances from standards for an application which, in the opinion
of the Department, does satisfy the review criteria (§ 2.7.2 of this Part) contained
herein, does not represent a random, unnecessary, or undesirable alteration of
freshwater wetlands, buffers, floodplains, areas subject to flooding or areas
subject to storm flowage, and satisfies all variance criteria or requirements as
specified in § 2.7.3 of this Part. All permits shall be in the form of a letter which
makes detailed reference to the subject application and the plans submitted in
support of the application.
2.12.6 Permit Requirements and Conditions
A.
Conditions and terms of the permit may require modification of portions of the
project, as described by plans provided by the applicant.
B.
Plans referenced within the permit letter shall be stamped “approved with
conditions” by the Department and shall contain the application number, date of
the permit letter, and signature of an authorized agent of the Department.
C.
A copy of the permit letter and one (1) set of the approved site plans must be
maintained at the project site at all times during construction and up to the time of
project completion. Prior to commencement of site alterations, the permittee shall
erect or post a sign, resistant to the weather and at least twelve inches (12”) wide
and eighteen inches (18”) long, which boldly identifies the initials "DEM" and the
application number of the permit. The sign must be maintained at the site in a
conspicuous location until such time that the Department issues a Notice of
Completion of Work for the project.
D.
When required by permit condition, the permit letter shall be recorded at the
expense of the owner, in the land evidence records of the city/town where the
subject property is located within ten (10) days of receipt of the permit letter. The
applicant must submit written documentation from the city or town showing that
the permit letter was received for recording immediately upon recordation.
E.
Unless otherwise ordered by the Department, or renewal of a permit is obtained,
all permits issued under an Application for a Significant Alteration are limited to a
period of one (1) year from the date of issuance and shall expire thereafter.
F.
The maximum period of years for a permit to remain valid consists of the original
one (1) year permit period and three (3) additional one (1) year renewal permit
periods, which must be consecutive and thus total four (4) consecutive years
from the original date the permit was issued. Any renewal must be requested by
Application for Renewal that meets the requirements of § 2.14.2 of this Part.
G.
Construction activities affecting freshwater wetlands, buffers, floodplains, areas
subject to flooding or areas subject to storm flowage occurring or ongoing at the
expiration deadline of any permit or any renewal permit must cease until such
time that a new permit has been issued by the Department in accordance with
these Rules.
H.
The original permittee or subsequent transferee is required to notify the
Department in writing prior to the commencement of the work described or
referenced in the permit, indicating the anticipated date of commencement.
Additionally, the permittee or subsequent transferee is required to notify the
Department in writing upon the completion of the permitted activities.
I.
After receipt of notification of the completion of work described or referenced in
the permit, the Department shall issue to the original permittee or subsequent
transferee a Notice of Completion of Work, in the form of a letter, provided that
an on-site inspection of the project by the Department determines that the work
has been completed in accordance with the permit and any conditions of
approval or renewals thereof. The Department may first require the permittee or
subsequent transferee to provide written certification from the appropriate
regulated professional attesting to the completion of the approved project that is
described or referenced in the permit or on the approved site plans.
J.
When required by the Department, the original permittee or subsequent
transferee shall record, at his or her expense, the Notice of Completion of Work
in the land evidence records of the city/town where the subject project is located.
Immediately upon recordation, the permittee or subsequent transferee must
submit written documentation from the city or town showing that the Notice of
Completion of Work was received for recording.
2.12.7 Permit Compliance
The applicant may only proceed with the approved project within freshwater
wetlands, buffers, floodplains, areas subject to flooding or areas subject to storm
flowage in strict compliance with such terms and conditions, including time of
completion, as the Department may require to ensure the protection of
freshwater wetlands, buffers or floodplains and the functions and values they
provide. Any non-compliance with a permit term or condition or these Rules
represents a violation of the permit, the Act and these Rules and constitutes
grounds for enforcement action.
2.12.8 Appeal of Decisions
A.
Request for Appeal. Within thirty (30) days of the receipt of a decision from the
Department regarding an Application for a Significant Alteration, the applicant
may request an adjudicatory hearing to appeal the decision, or portions thereof.
The request for an adjudicatory hearing must be in writing, must comply in form
and content for such requests as required by the Rules and Regulations for the
Administrative Adjudication Division, Part 10-00-1 of this Title, and must be filed
directly with the AAD. A copy of such request must also be forwarded to both the
Freshwater Wetlands Program and the Office of Legal Services. Any request for
an adjudicatory hearing on an application must be accompanied by a fee as
specified in §§ 2.8.8 and 2.8.9(D) of this Part. A request for an adjudicatory
hearing will not be considered timely filed unless accompanied by the full
required fee. A request for an adjudicatory hearing automatically stays any permit
issued.
B.
Adjudicatory Hearings
1.
Applicable Rules: Following an appeal of a decision regarding an
Application for a Significant Alteration, all adjudicatory hearings shall be
held in accordance with R.I. Gen. Laws § 42-35-1 et seq. [hereinafter the
Administrative Procedures Act (APA)], the Rules and Regulations for the
Administrative Adjudication Division, Part 10-00-1 of this Title, and other
governing laws, Rules and Regulations adopted by the Department.
2.
Burden of Proof: It shall be the applicant’s burden to demonstrate by a
preponderance of the evidence that the project, as proposed and sent out
for public comment pursuant to R.I. Gen. Laws § 2-1-22, is consistent with
the purposes of the Act, complies with these Rules, and is protective of
the environment and the health, welfare and general well-being of the
populace.
C.
Permit Issuance Following Exhaustion of Legal Remedies. After exhaustion of
available legal remedies the Department, when ordered, will issue a permit with
terms and conditions as established by the Department in accordance with the
requirements set forth in the Act and these Rules to ensure the protection of
freshwater wetlands, buffers and floodplains, and the functions and values they
provide.
2.12.9 Negotiated Settlements – Consent Agreements
A.
Following denial of an application, the Department and the applicant may enter
into settlement negotiations in only those cases where the proposed resolution
does not represent, in the opinion of the Department, a substantial modification
of the original project.
B.
A proposed resolution will be considered a substantial modification of the original
project when the freshwater wetlands, buffer or floodplain alterations
contemplated by such resolutions are:
1.
Proposed in different areas of the jurisdictional area so as to require public
notice to additional or new parties as set forth in R.I. Gen. Laws § 2-1-22;
or
2.
Proposing impact(s) which were not evaluated by the Department
pursuant to its review of the original application.
C.
When a proposed resolution represents only a reduction or elimination of
freshwater wetlands, buffer or floodplain alterations from those proposed in the
original application, such proposed resolution will not be considered a substantial
modification.
D.
Any request by the applicant to submit revised plans in accordance with
settlement negotiations shall require a fee §§ 2.8.8 and 2.8.9(A)(10) of this Part.
As a result of settlement negotiations, a Consent Agreement may be executed by
the parties whereby a permit is issued. Such an agreement is deemed a final
order of the Department and is enforceable by resort to Superior Court.
2.12.10
Application Closure
A.
An Application for a Significant Alteration shall be considered closed under the
following circumstances:
1.
The applicant fails to answer any notification of application deficiency or
any request for additional information by the Department within a period of
one (1) year from the date the deficiency letter is issued;
2.
A permit or a letter of denial is issued and the applicant fails to appeal the
decision within thirty (30) days of receipt of the decision;
3.
The Department is notified in writing of a change of ownership during the
processing of the application and the new owner does not comply with §
2.8.3(F) of this Part within sixty (60) days;
4.
The applicant is notified in writing that a substantive objection related to
the subject application was received and fails to provide a written
authorization and fee for a public hearing within thirty (30) days following
receipt of such notification; or
5.
Upon receipt of notification from the applicant that authorization for a
public hearing has been withdrawn (§ 2.12.4(C)(6) of this Part).
2.13 Application Relating to Farmers
2.13.1 Definition of Farmer
A farmer, as defined in these Rules, means an individual, partnership or
corporation that operates a farm and has filed a Form 1040F or comparable
instrument with the U.S. Internal Revenue Service, has a State of Rhode Island
farm tax number, and has earned ten thousand dollars ($10,000.00) gross
income on farm products in each of the preceding four (4) years.
2.13.2 Regulated Areas for Certain Farming and Ranching Activities by Farmers
A.
The regulated areas for farmers, as defined herein, conducting normal farming
and ranching activities or proposing to construct new farm ponds, new farm
roads or new drainage structures, as specified in §§ 2.13.3 and 2.13.4 of this
Part, shall include the following areas:
1.
Freshwater wetlands;
2.
Floodplains;
3.
Areas subject to storm flowage;
4.
Areas subject to flooding;
5.
The land area within two hundred feet (200’) of a flowing body of water
having a width of ten feet (10’) or more during normal flow;
6.
The area of land within one hundred feet (100’) of a flowing body of water
having a width of less than ten feet (10’) during normal flow;
7.
The area of land within fifty feet (50’) of a bog, marsh of one (1) acre or
greater, swamp of three (3) acres or greater, and pond not less than one
quarter (1/4) acre in extent.
2.13.3 Normal Farming and Ranching Activities by Farmers
Within the areas specified in § 2.13.2 of this Part, it is permissible for farmers, as
defined herein, to conduct normal farming and ranching activities in accordance
with best farm management practices that assure the adverse effects to the
chemical, biological and hydrologic characteristics of freshwater wetlands and
the aquatic environment are minimized. Normal farming and ranching activities
by farmers include plowing, seeding, cultivating, land clearing for routine
agricultural purposes, harvesting of agricultural products, pumping of existing
farm ponds for agricultural purposes, upland soil and water conservation
practices, and maintenance of existing farm drainage structures, existing farm
ponds and existing farm roads.
2.13.4 New Farm Ponds, New Farm Roads or New Drainage Structures Proposed
by Farmers
A.
Within the areas specified in § 2.13.2 of this Part, farmers, as defined herein,
proposing to construct new farm ponds, new farm roads or new drainage
structures are required to submit an application to the Department’s Division of
Agriculture in accordance with the following procedure:
1.
Applications shall be in writing and on a form prescribed by the Division of
Agriculture.
2.
The farmer shall include appropriate plans and drawings to a scale of not
less than one inch (1”) to one hundred feet (100’) (1” = 100’) with the
application. The plans, designs and drawings shall be in accordance with
the standards set by the United States Department of Agriculture, Natural
Resource Conservation Service, the Division of Agriculture, or §§ 2.8.4
and 2.8.5 of this Part.
3.
The Division of Agriculture shall review each application for its
conformance to R.I. Gen. Laws § 2-1-22(i).
4.
A written permit from the Division of Agriculture may be issued to a farmer
for a proposed project or activity that is determined to be an insignificant
alteration to freshwater wetlands and to the areas specified in § 2.13.2 of
this Part.
5.
If the proposed project or activity is a significant alteration, then the
applicant is required to submit an Application for a Significant Alteration to
the Department in accordance with § 2.12 of this Part.
B.
Permits are not required for new farm ponds, new drainage structures or new
farm roads proposed by farmers and which are to be located outside of
freshwater wetlands and the areas specified in § 2.13.2 of this Part, provided that
they do not result in the alteration of freshwater wetlands, buffers, floodplains,
areas subject to flooding or areas subject to storm flowage.
2.13.5 Agricultural Practices by Other Persons
A.
Continuing or Expansion of Limited Agricultural Practices
1.
Continuing agricultural practices in a jurisdictional area, including cutting
or clearing of invasive plant species, by any property owner other than a
farmer are permissible in accordance with § 2.6.1 of this Part provided that
the activities are restricted to existing or approved gardens, pastures, and
fields which have been in use on a regular basis. In regular use shall
mean fields that are tilled, planted, or produce crops at least once within a
twenty-four (24) month period; or pastures that are maintained to manage
the growth of woody vegetation.
2.
Expansion of existing gardens, pastures, and fields within a jurisdictional
area is exempt, in accordance with § 2.6.1 of this Part, provided that:
a.
No freshwater wetlands are altered; and
b.
All activity is located outside of any designated buffer zone (see §
2.23 of this Part) and does not cause filling of any floodplains,
areas subject to flooding or areas subject to storm flowage.
3.
New farm ponds, new drainage structures or new farm roads proposed by
persons not meeting the definition of a farmer in § 2.4(A)(26) of this Part,
and located within a jurisdictional area, are subject to these Rules
including the permitting provisions in §§ 2.7 through 2.14 of this Part.
4.
Persons not meeting the definition of farmer in § 2.4(A)(26) of this Part
proposing to establish new agricultural operations, including the clearing
of land for agriculture purposes, are subject to these Rules including the
permitting provisions in §§ 2.7 through 2.14 of this Part.
2.14 Other Application Types
2.14.1 Application for Emergency Alterations
A.
An emergency alteration is one that is required to protect the public from
imminent harm to its health or safety; and is authorized by the Department. Oral
approval of an emergency alteration, other than those alterations specified in §
2.6 of this Part, may be granted by the Department consistent with the
requirements set forth below. Applicants who are not considered an appropriate
official of a town, city, State or Federal agency or public utility responsible for
correcting problems which arise on an emergency basis and pose an imminent
threat to the public health and safety should contact the Freshwater Wetlands
Program for consideration of individual emergency situations.
1.
An oral or written request for permission to proceed with an emergency
alteration must be made to the Freshwater Wetlands Program, Office of
Water Resources, by the owner of the property or easement where the
emergency alteration is proposed or by an appropriate official of a town,
city, State or Federal agency or public utility responsible for correcting
problems which arise on an emergency basis and pose an imminent threat
to the public health and safety;
2.
At a minimum, the request must inform the Department of the following:
a.
An explanation of the problem necessitating an emergency
alteration;
b.
The reason why the problem represents an imminent threat to
health and safety;
c.
The location of the area in which corrective activity is required;
d.
The proposed actions necessary to correct the problems;
e.
The person responsible for overseeing the activity, including
immediate means of contact; and
f.
The means proposed to restore the freshwater wetlands, buffer,
floodplain, area subject to flooding or area subject to storm flowage
following the emergency alteration, as appropriate.
3.
Any emergency alteration undertaken shall not result in a permanent
alteration of any freshwater wetland, buffer or floodplain except as allowed
for dam safety as approved by the Department in accordance with the
Rules and Regulations for Dam Safety, Part 130-05-1 of this Title. The
applicant must, in so far as possible, restore the areas to prevent or
minimize any permanent alteration. Such restoration must be undertaken
in accordance with requirements provided by the Department;
4.
Alteration of a jurisdictional area shall not exceed work beyond that
necessary to abate the emergency;
5.
Unless otherwise informed by the Department following its inspection of
the site, the applicant must submit an as-built site plan or a plan of
restoration to the Department no later than forty-five (45) days following
the action necessary to correct the emergency problem. The site plan
must illustrate the emergency activity undertaken, the jurisdictional area
affected, any alteration which resulted from the activity, and all restoration
activities undertaken, or which are still required. The required site plan
must comply with §§ 2.8.4 and 2.8.5 of this Part;
6.
The time limitation for performance of an emergency alteration shall not
exceed ten (10) days following initial approval by the Department unless
written approval for an extension is obtained from the Department; and
7.
Following submission of the as-built site plan required in § 2.14.1(A)(5) of
this Part, the applicant is required to comply with any additional activities
necessary to prevent any permanent alteration or to finalize wetland
restoration as detailed in writing by the Department.
2.14.2 Application for Permit Renewal
A.
An Application for Renewal is required to renew any permit issued as a result of
an Application for a Significant Alteration or an Application for a Freshwater
Wetlands Permit.
B.
The application shall be made on a form specified by the Department on which
the applicant must stipulate that the application is to renew the permit for the
original or subsequently modified permitted project. For renewal of a permit, the
applicant must further stipulate that the permit limitations are understood and the
applicant will comply with any and all conditions of the permit.
C.
Only the original permittee or subsequent transferee may request renewal of the
permit.
D.
Any Application for Renewal should be submitted no later than sixty (60) days
before the permit or renewal permit expiration date.
E.
An Application for Renewal of a permit shall be limited to requests to continue or
complete the originally permitted alterations. Any modifications to the original
proposal, other than permitted modifications, shall require a new application, or
an Application for Permit Modification.
F.
An Application for Renewal of a permit will not be granted, if, in the opinion of the
Department, work has taken place in non-compliance with the original permit or
any renewal thereof, in non-compliance with the Act or any of these Rules, or if
the applicant revises the project such that there is a change in proposed
alterations of freshwater wetlands, buffers, floodplains, areas subject to flooding
or areas subject to storm flowage.
2.14.3 Application for Permit Modification
A.
Prior to the expiration of a valid permit, a permittee may apply to the Department
requesting approval to incorporate minor modification(s) to the originally
permitted project. Such modification(s) in all cases may not increase the limits of
disturbance of freshwater wetlands, buffers, floodplains, areas subject to flooding
or areas subject to storm flowage previously permitted unless such increases
occur in existing paved, lawn, or otherwise developed areas, or increase the
anticipated impacts from that previously permitted by the Department. Any
modifications must be minor in nature in relation to the originally permitted
project.
B.
The application shall be made on a form prescribed by the Department and must
be completed and submitted with revised plans for the Department's review
including the appropriate fee. The revised plans submitted with the application
shall clearly depict the proposed modification and shall comply with all
requirements stipulated in the original application and with these Rules. (See site
plan requirements in §§ 2.8.4 and 2.8.5 of this Part).
C.
In addition to revised plans and appropriate fee, the permittee must submit a
written narrative and any additional data which describes and details the minor
changes or modification proposed and the reasons for the modification.
D.
An Application for Permit Modification will not be approved if, in the opinion of the
Department, the modification(s): are not minor in nature in relation to the
originally permitted project; involve increases of disturbance into vegetated areas
not previously evaluated by the Department; or increase the anticipated impacts
from that previously permitted by the Department.
E.
Following receipt of an Application for Permit Modification, the Department may:
1.
Issue a revised permit for the modified project; or
2.
Inform the applicant that the modifications requested require a new
application.
F.
The filing of this application shall not stay or modify any time limitation or
condition of the permit.
2.14.4 Application for Permit Transfer
A.
Any valid permit issued by the Department that has been recorded in the land
evidence records of the municipality or municipalities in which the property
subject to the permit is located is automatically transferred upon the sale of the
property to the new owner.
B.
Any subsequent transferee of the property subject to a permit for a significant
alteration shall, within ten (10) days of the property transfer, notify the
Department by forwarding to the Department a certified copy of the deed of
transfer.
C.
A new property owner may complete and submit an Application for Permit
Transfer to have a permit transferred to his or her name provided that the
following information is submitted:
1.
A certified copy of the deed of transfer of the property subject to the
permit;
2.
A notarized statement signed by the new owner or authorized individual as
required stating that he or she has reviewed the approved plan, the permit
letter, and agrees to abide by the conditions of the permit, including the
time limits; and
3.
A completed application form §§ 2.8.2 and 2.8.3 of this Part and the
application fee in § 2.8.9(A)(7) of this Part.
D.
The filing of this application shall not stay or modify any time limitation or
condition of the permit.
E.
The limit of disturbance, the conditions of approval and any other requirements
set forth in any recorded permit shall apply to and be enforceable against all
subsequent owners of the land subject to the permit, unless a new or modified
permit has been obtained from the Department.
2.15 Enforcement
2.15.1 Enforcement
Pursuant to R.I. Gen. Laws §§ 42-17.1-2 et seq., 42-17.6-1 et seq., 2-1-18 et
seq. and the Rules and Regulations for Assessment of Administrative Penalties,
Part 130-00-1 of this Title, the Department has the authority to issue enforcement
notices, orders or requirements to ensure compliance with the Act and these
Rules and to assess administrative penalties. The Department may also provide
written or oral warning of its intent to undertake enforcement action, but is not
required to do so.
2.15.2 Revocation or Suspension of Determination or Permit
A.
The Department may revoke or suspend any determination or permit under one
(1) or more of the following conditions:
1.
The information or data submitted by the applicant or permittee either on
the form(s) required or in any other material in support of the application is
found to be false, misleading or erroneous;
2.
The project is not undertaken in strict compliance with the conditions or
provisions of any determination or permit issued by the Department; or
3.
The Department is in receipt of reliable information that, without immediate
action to suspend or revoke the determination or permit, the project is
likely to harm the environment or pose a threat to the health, safety or
welfare of the public. In such cases, the Department may issue a
summary suspension.
2.15.3 Right to Request Administrative Hearing
A.
Enforcement actions: The Respondent is entitled to request a hearing before the
Department regarding the orders or penalties set forth in an enforcement action.
B.
Revocation or Suspension of a Determination or Permit: The Respondent is
entitled to request a hearing before the Department regarding the Revocation or
Suspension of a Determination or Permit.
C.
All requests for hearings on enforcement actions or revocation or suspension of a
determination or permit must follow the requirements set forth in the Rules and
Regulations for the Administrative Adjudication Division, Part 10-00-1 of this Title.
2.16 Municipal Petition Process
A.
A municipality may petition the Department to amend the buffer standard to
increase the width of a designated buffer zone protecting one (1) or more
freshwater wetland resources within the associated contiguous jurisdictional
area. The Municipal Petition shall specify the buffer zone increase requested.
B.
A Municipal Petition shall be submitted in writing, and it shall be accompanied by
a formal Council Resolution passed by the municipal government.
C.
Municipal Petitions must include:
1.
A detailed description of the freshwater wetland resource(s) to be
protected.
2.
The technical justification for the proposed buffer zone increase, including
an assessment of the freshwater wetland resources’ functions and values
that contribute to the need for the buffer zone increase. The assessment
may include, but is not limited to, the freshwater wetland size(s),
classification, flood protection value, water quality improvement function,
plant and wildlife habitat and diversity, the presence of rare plant or animal
species, and the freshwater wetland resources’ condition. The Municipal
Petition shall be based on Rhode Island-specific information or other
relevant data or studies that support the need for the additional buffer
zone protection.
3.
A map depicting the location of the freshwater wetland resource(s) subject
to the increased buffer zone distance.
4.
Any additional information that the Director determines is necessary to
properly evaluate the Municipal Petition.
D.
Upon submittal of a Municipal Petition, the Director shall either deny the Petition
in writing (stating the reasons for the denial) or initiate rulemaking proceedings.
E.
The approved increased buffer zone distance shall not be retroactively applied to
prior agency decisions.
2.17 Public Access to Records
A.
Information, forms, or other materials related to the Act, these Rules, and actions
taken are available at the Department. Office hours are 8:30 a.m. to 4:00 p.m.
daily except Saturdays, Sundays, and State holidays. As appropriate, an
appointment during office hours may be scheduled in advance.
B.
Access to records on file shall be in accordance with R.I. Gen. Laws § 38-2-1 et
seq. A fee shall be required to cover the costs of copying, and may be required to
cover the costs of search and retrieval of documents.
2.18 Severability
If any provision of these Rules or the application thereof to any person or
circumstances is held invalid by a court of competent jurisdiction, the validity of
the remainder of the Rules shall not be affected thereby.
2.19 Superseded Rules
A.
On the effective date of these Rules, all previous Rules regarding the
administration and enforcement of the Freshwater Wetlands Act shall be
superseded notwithstanding the following:
1.
Any application submitted to the Department prior to the effective date of
these Rules shall be governed by the Rules in effect at the time the
application was filed;
2.
Any enforcement action taken by the Department prior to the effective
date of these Rules shall be governed by the Rules in effect at the time of
the enforcement action;
3.
Applicants for projects that have obtained a valid Master Plan Approval
from a municipality on or before the effective date of the Rules may elect
to comply with the prior Freshwater Wetlands Rules, in effect as of July
16, 2014, provided that a complete application for the project is submitted
to the Department on or within sixty (60) days from. A copy of Master Plan
Approval shall be submitted with the application to demonstrate eligibility
under this Rule; and
4.
Applicants who possess a valid municipal building permit issued on or
before the effective date of these Rules shall be governed by the Rules
applicable at the time the building permit was issued. A project within a
jurisdictional area for which a valid building permit has been issued that
was not subject to permitting under the prior Rules may be constructed in
accordance with the building permit without a requirement to obtain a
freshwater wetlands permit for the subject project. Proposed new projects
or alterations within a jurisdictional area may need to obtain a freshwater
wetland permit in accordance with these Rules.
2.20 Effective Date
These Rules are hereby adopted and will become effective one hundred eighty
(180) days from the date of filing with the Secretary of State.
2.21 Specific Criteria for Identifying Freshwater Wetlands and
Floodplain Edges
2.21.1 Vegetated Freshwater Wetlands
A.
The landward edge of vegetated freshwater wetlands (i.e., bogs; marshes;
swamps; emergent wetlands; or similar types, including complexes of these
types), shall, under normal conditions, be identified as the place where the plant
community associated with the vegetated wetland is no longer dominated by
hydrophytes/hydrophytic vegetation (i.e., the plant community is composed of
less than or equal to fifty percent (50%) hydrophytes/hydrophytic vegetation).
B.
Hydrophytes/hydrophytic vegetation includes, but is not limited to:
1.
Those typical plant species listed in the Act under R.I. Gen. Laws §§
2-1-20(3) "bog", (10) "marsh" and (16) "swamp"; or
2.
Those plant species listed as having a wetland indicator status of Obligate
(OBL) according to the most recent edition of the National Wetland Plant
List: State of Rhode Island Wetland Plant List, as prepared by the U.S.
Army Corps of Engineers incorporated above at § 2.3(C) of this Part; or
3.
Those plant species listed as having a wetland indicator status of
Facultative Wetland (FACW), Facultative (FAC) or Facultative Upland
(FACU) according to the National Wetland Plant List: State of Rhode
Island incorporated above at § 2.3(C) of this Part, where such plants are
present along with other clear hydrologic indicators of wetland.
C.
Where no distinct edge is apparent based upon examination of vegetation alone
(e.g., the plant community is transitional in nature and dominated by species
having an indicator status of FACW, FAC or FACU), other hydrologic indicators
must be considered before determining the location of the landward edge of
vegetated freshwater wetlands. Where such indicators are present, the FACW,
FAC, or FACU plant species are considered hydrophytes/hydrophytic vegetation;
however, the landward edge of vegetated wetland in such transitional areas is
located where other hydrologic indicators are no longer present.
D.
Other hydrologic indicators are those characteristics, other than vegetation,
which provide evidence that an area is continuously or periodically saturated,
inundated, flooded, or ponded; has standing or slowly moving water; or
frequently collects surface run-off or drainage. Examples of other hydrologic
indicators include, but are not limited to, the following: (Those features in §§
2.20.1(D)(3), (5), and (7) through (9) of this Part are valid indicators only when at
least one (1) additional hydrologic indicator is present.)
1.
Morphologic features or properties associated with hydric soils in
accordance with the most recent version of the Field Indicators for
Identifying Hydric Soils in New England;
2.
Visual observation of soil saturation within twelve inches (12”) of the soil
surface (considering both seasonal and recent weather conditions);
3.
Distinct water marks on vegetation or other fixed objects;
4.
Sulfitic materials (H2S – rotten egg odor) within twelve inches (12”) of the
soil surface;
5.
Mound and pool microtopography;
6.
Patches of peat mosses (Sphagnum spp.);
7.
Soil morphologic evidence of recent or periodic flooding (e.g., stratification
associated with flood plains);
8.
Visual observation of surface inundation (considering both seasonal and
recent weather conditions);
9.
Dark or water-stained leaves on the ground surface;
10.
Drift or wrack lines of water-borne materials;
11.
Wetland drainage features or patterns such as scoured channels;
12.
Morphological plant adaptations (e.g., buttressed trees trunks,
adventitious roots, exposed or shallow root systems);
13.
Distinct or prominent pore linings (oxidized rhizopheres) along live roots
within twelve inches (12”) of the soil surface.
E.
For purposes of locating and identifying the edge of vegetated freshwater
wetlands for applications submitted to the Department, the Department will
accept the methodology described and incorporated within the Corps of
Engineers Wetlands Delineation Manual, Technical Report Y-87-1, January,
1987, Prepared for: Department of The Army, U.S. Army Corps of Engineers and
Regional Supplement to the Corps of Engineers Wetlands Delineation Manual
Northcentral and Northeast Region, 2012, prepared by the U.S. Army Corps of
Engineers, Technical Report 12-0 ERDC/EL under the following conditions:
1.
The use of this methodology is intended to facilitate the location and
identification of the edge of "vegetated" wetlands, but must not be
interpreted as redefining freshwater wetlands regulated under the Act and
these Rules.
2.
All edge locations and delineations are subject to the Department’s review
and acceptance under the procedures set forth in § 2.9.2 of this Part for
Requests to Determine the Presence of Jurisdictional Area. Accordingly,
all requests to verify the edge of these types of wetlands will require on-
site inspection and analysis.
3.
Areas discovered during the delineation of freshwater wetlands which
appear to have altered conditions (e.g., removal of vegetation, ditching,
draining, filling or other alterations that have changed or appear to change
normal conditions) must be documented.
2.21.2 Flowing and Standing Water Freshwater Wetlands
A.
The edge of rivers, streams, intermittent streams, ponds, vernal pools, areas
subject to storm flowage, areas subject to flooding and other areas dominated by
open or flowing water shall be identified as follows:
1.
The edge of rivers, streams, intermittent streams, ponds, vernal pools,
areas subject to storm flowage, areas subject to flooding and other areas
dominated by open or flowing water shall be the ordinary high water mark
of standing or flowing water. The ordinary high water mark is the line
separating land flooded at high water and land exposed at high water.
This line may be determined and documented by using recorded
hydrologic data (e.g., data obtained from site specific planning and design
documents; in-stream flow studies; stream gauge data; the Department’s
file data; or flood data), or, in the absence of these, by observing physical
characteristics, such as evidence of a clear demarcation line between
terrestrial and aquatic conditions as a result of standing or flowing water;
shelving; permanent watermarks and stains on woody vegetation or other
fixed objects, such as bridges, stones, walls, docks, or piers; changes in
the character of the soil; the presence of water-borne natural litter and
debris; evidence of surface scouring; or other appropriate means.
2.
The edge of any pond and incoming or outgoing flowing body of water
shall be that location where characteristics associated with a lentic
ecosystem and a lotic ecosystem are both present.
2.21.3 Floodplain
A.
The edge of any floodplain shall be identified as the maximum horizontal extent
of flood water which will result from the statistical one hundred (100) year
frequency storm event.
B.
The one hundred (100) year floodplain elevation shall be determined by the most
recently available flood profile data prepared under the National Flood Insurance
Program of the Federal Emergency Management Agency (FEMA); or
C.
In instances where FEMA has not established the elevation of the one hundred
(100) year floodplain, the floodplain elevation and floodplain edge shall be
determined through calculations completed by a Registered Professional
Engineer. These calculations shall be based upon the following:
1.
Calculation of one hundred (100) year flood discharge based on a one
hundred (100) year rainfall event identified in the Stormwater
Management, Design and Installation Rules, Subchapter 10 Part 8 of this
Chapter, and a generally accepted hydrologic model including, but not
limited to, TR-20, TR-55 or commercially available software based on
TR-20 or TR-55. In certain cases involving very large watersheds an
acceptable regression equation methodology may be used, such as a
U.S.G.S regression for Rhode Island.
2.
Using the flood discharge established as described in § 2.21.1(C)(1) along
with detailed topography mapping, prepare a determination of peak one
hundred (100) year flood elevation using a widely accepted hydraulic
model such as the U.S. Army Corps of Engineers’ Hydrologic Engineering
Center River Analysis System (HEC-RAS). Once this elevation is
established the edge of the one hundred (100) year floodplain must be
plotted on a detailed site topography map.
D.
The flood plain edge must coincide with the flood plain elevation and topographic
contour elevations as depicted on submitted plans. Transposing flood boundaries
from FEMA maps by using horizontal scaling is not acceptable for plans
submitted to the Department. Identification of the one hundred (100) year flood
elevation must be expressed as North American Vertical Datum 1988 (NAVD88).
2.21.4 Floodway
A.
The edge of floodway for all rivers and streams will be depicted and recognized
as follows:
1.
Where FEMA has designated a floodway for any river or stream on a
FEMA Flood Insurance Rate Map (FIRM), the Department will recognize
the same floodway; or
2.
Where no FEMA floodway has been established for a river or stream, the
edge of the channel as identified in § 2.21.2(A) of this Part shall also be
considered the edge of the floodway.
2.21.5 Criteria for Identification of Freshwater Wetlands for Farmers Conducting
Normal Farming and Ranching Activities
A.
For the purpose of R.I. Gen. Laws § 2-1-22(k), identification of the edges of
vegetated freshwater wetlands, flowing and standing water freshwater wetlands,
and floodplains shall be consistent with the criteria specified in §§ 2.21.1, 2.21.2,
and 2.21.3 of this Part.
B.
The “area of land within fifty feet (50’)” shall be identified as the line measured
landward horizontally, without regard for topography, fifty feet (50’) from the edge
of any bog; marsh one (1) acre or greater; swamp three (3) acres or greater; or
pond not less than one quarter (1/4) acre in size as those freshwater wetlands
are defined herein.
C.
The area of land within two hundred feet (200’) of a flowing body of water greater
than or equal to ten feet (10’) wide and the area of land within one hundred feet
(100’) of a flowing body of water less than ten feet (10’) wide shall be referred to
as riverbank. The edge of riverbanks along a river, stream, intermittent stream, or
flowing body of water shall be determined by the method described herein:
1.
The Department may compile designated riverbank widths (one hundred
feet (100’) or two hundred feet (200’)) for flowing water body segments
and maintain this information on file. Such designations shall be based
upon currently available maps, aerial photographs, observations, and past
determinations by the Department. All applicants may consult with the
Department regarding the availability of designated riverbank widths along
any flowing bodies of water segments in the project area. If a riverbank
width has been determined by the Department, this designation can be
used to preclude the need for the applicant to undertake field
measurements or observations.
2.
When designated riverbank widths are not available, the identification and
assignment of a riverbank width shall, if the width is not obvious, be
conducted using the following method, without regard to topography:
a.
The width of the flowing body of water shall be measured along the
channel’s length at a minimum of five (5) locations upstream and at
a minimum of five (5) locations downstream from a measured
midpoint within the project area or area of concern.
b.
The measurements shall be taken at the midpoint, and at
approximately equal intervals along the channel’s length with the
minimum distance between intervals not less than twenty feet (20’)
and the maximum distance between intervals not exceeding fifty
feet (50’).
c.
The midpoint of the measurements shall be near the midpoint of the
project area or area of concern.
d.
The measurements shall be taken between the edges of the flowing
body of water or channel as delineated according to § 2.21.2(A)(1)
of this Part.
e.
All measurements shall be taken at locations that are
representative of the water body segment, must be documented as
to the locations, and must be able to be reproduced. Measurements
taken at any human-induced restrictions which are less than the
natural conditions or within sections of the flowing body of water
subject to unauthorized alterations are not applicable or acceptable.
3.
The arithmetic average or mean of the channel width measurements shall
serve as the average channel width for the purposes of assigning
riverbank. The mean shall be calculated using the formula:
4.
When the mean channel width is less than ten feet (10’), the riverbank
shall be one hundred feet (100’). When the mean channel width is ten feet
(10’) or more, the riverbank shall be two hundred feet (200’).
2.22 Freshwater Wetlands Jurisdictional Boundary Map
2.23 Statewide Buffer Zone Designations
A.
§ 2.23 of this Part presents the statewide buffer zones designated by the Director
to protect freshwater wetlands, including rivers and ponds, consistent with § 2.7
of this Part. The buffer zones are applicable to projects or activities that are
subject to freshwater wetlands permitting requirements, except as otherwise
provided for in §§ 2.5.7 and 2.13.1 through 2.13.4 of this Part which govern
freshwater wetlands for farmers conducting farming activities.
B.
The designated buffer zones are organized into regions which are depicted on a
map described in § 2.23(C) of this Part and included in § 2.24 of this Part. The
regions are:
1.
Non-urban River Protection Region 1 and River Protection Region 2:
These Regions includes watershed areas that are high priorities for
conservation of fish and wildlife habitat, including rivers which rank highest
on a Rhode Island stream condition index, as well as areas of the State
that exhibit a mix of land uses, watershed characteristics and settings.
2.
Urban Region: This Region includes densely developed areas of the State
including portions of watersheds that contain high percentages of
impervious cover and areas that are already developed or altered.
C.
The Freshwater Wetlands Buffer Regions map prepared by the Department is
adopted by reference with the promulgation of these Rules (§ 2.24 of this Part).
The map shall be on file and made available for review at the Department.
Additionally, the map information will be made available for viewing through the
Department’s website. The map should be used to identify the Region within
which a property is located and the buffer zone requirements that correspond to
that Region as specified within § 2.23 of this Part.
D.
Buffer zone requirements applicable to public drinking water supply reservoirs
and their watersheds are presented in §§ 2.23(H)(1), (H)(2)(a) and (H)(4) of this
Part.
E.
The buffer zone requirements in each region are specified for various types of
freshwater wetlands including ponds, vegetated freshwater wetlands, vernal
pools, and rivers and streams. The following freshwater wetland subtypes are
described to guide their proper identification:
1.
Wet meadow: A marsh that does not typically have standing water and is
periodically grazed or mowed
2.
Phragmites marsh: A marsh whose plant community is composed of more
than seventy-five percent (75%) non-native common reed (Phragmites
australis)
3.
Shrub swamp: A swamp or portion of a swamp whose plant community is
composed of greater than fifty percent (50%) woody plants less than
twenty feet (20’) tall
4.
Evergreen forested swamp: A swamp or portion of a swamp whose
overstory is composed of greater than fifty percent (50%) Atlantic white
cedar (Chamaecyparis thyoides) or Eastern hemlock (Tsuga canadensis)
trees
5.
Swamp with great-laurel Rhododendron: A swamp or portion of a swamp
whose understory is composed of great-laurel Rhododendron
(Rhododendron maximum) shrubs
6.
For the purpose of identifying freshwater wetlands and their associated
buffer zones, an emergent plant community shall be considered a marsh
and a submergent plant community shall be considered a pond.
7.
Fens are open canopy, groundwater-fed freshwater wetlands with less
than fifty percent (50%) cover of trees. Shrubs are frequently present (less
than fifty percent (50%) cover) as are grasses and mosses. The dominant
plants are sedges.
8.
Floodplain forests are hardwood swamps on lower terraces of river
floodplains characterized by a flooding regime in which low areas are
flooded annually, usually in the spring. In northern Rhode Island (along the
Blackstone River and smaller rivers in Providence County) they are
characterized by silver maple (Acer saccharinum) and sycamore (Platanus
occidentalis) trees, while in southern Rhode Island (along the lower
Pawcatuck River) they are characterized by red maple (Acer rubrum), pin
oak (Quercus palustris) and green ash (Fraxinus pensylvanica) trees.
9.
Freshwater pond shores that support coastal plain species are gently
sloping sandy-gravelly shores of kettle ponds or pond depressions within
Rhode Island’s coastal region. They may be seasonally or semi-
permanently flooded, and they support distinct assemblages of grasses,
sedges, rushes and other herbaceous plants.
F.
Measurement of Freshwater Wetland Buffer Zones
1.
The buffer zone shall be measured perpendicularly, without regard for
topography, outward from the edge of the freshwater wetland as a
horizontal distance. The freshwater wetland edge shall be determined
consistent with § 2.21 of this Part.
2.
The buffer zone associated with vegetated freshwater wetlands shall be
designated based upon the wetland type or subtype identified at the edge
in accordance with § 2.23 of this Part. An additional twenty-five feet (25’)
will be added to the buffer zone width when one (1) or more differing
freshwater wetland types or subtypes are present within fifty feet (50’)
inward of the freshwater wetland edge, but in no case will a buffer zone
exceed the limit of a jurisdictional area. In large freshwater wetland
systems, it is not necessary to map all of the interior wetland types.
3.
For the purpose of designating a buffer zone, it may be necessary to
determine the size of a freshwater wetland.
4.
In the event that a property straddles a Region boundary, a buffer zone
width shall be designated consistent with the Region within which its’
associated freshwater wetland is located.
5.
In the event of the documented presence of a rare plant, rare animal or
rare freshwater wetland type, the Department reserves the right to
increase the associated buffer zone width designated in §§ 2.23(H) or (I)
of this Part.
G.
Identifying the Existing Buffer within a Buffer Zone: On properties where a portion
of the designated buffer zone has been developed or altered, the extent of
existing undeveloped vegetated land shall include all areas adjacent to the
freshwater wetlands that are not existing building, pavement, lawn or bare gravel.
H.
Designated Buffer Zones in the non-urban River Protection Region 1 and River
Protection Region 2
1.
The following Public Drinking Water Supply Reservoirs are designated a
two hundred foot (200’) buffer zone:
Public Drinking Water Supply
Reservoir Name
Reservoir
Location
a. Cumberland Water Supply
Sneech Pond
Cumberland
b. Eleanor Slater
Hospital/Zambarano Unit
Wallum Lake
Burrillville
c. Jamestown Water Supply
North Carr Pond and
South Watson Pond
Jamestown
d. New Shoreham Water
Supply
Fresh Pond and Sands
Pond
New Shoreham
e. Newport Water Supply
Lawton Valley
Reservoir and St.
Mary’s Pond
Portsmouth
f. Newport Water Supply
(South) Easton Pond
and Green End Pond
(North Easton Pond)
Middletown,
Newport
g. Newport Water Supply
Nelson (Paradise)
Pond and Gardiner
Pond
Middletown
h. Newport Water Supply
Sisson Pond
Portsmouth
i. Newport Water Supply
Nonquit Pond
Tiverton
j. Newport Water Supply
Watson Reservoir
Little Compton
k. Pawtucket Water Supply
Board
Arnold Mills Reservoir,
Diamond Hill
Reservoir, Happy
Hollow Pond, and
Robin Hollow Pond
Cumberland
l. Providence Water Supply
Board
Barden Reservoir
Foster, Scituate
m. Providence Water Supply
Board
Moswansicut Pond
Johnston,
Scituate
n. Providence Water Supply
Board
Scituate Reservoir and
Regulating Reservoir
Scituate
o. Providence Water Supply
Board
Westconnaug
Reservoir
Foster
p. Stone Bridge Water Supply
Stafford Pond
Tiverton
q. Woonsocket Water Supply
Reservoir #1
North
Smithfield
r. Woonsocket Water Supply
Reservoir #3
North
Smithfield,
Smithfield
s. Woonsocket Water Supply
Harris Pond
Woonsocket
t. Yawgoog Scout
Reservation
Yawgoog Pond
Hopkinton
2.
Ponds within River Protection Region 1 or River Protection Region 2 are
designated the following buffer zones:
Resource
Criteria
Buffer Zone
Width (Feet)
a. Ponds
Contiguous to a River within the watershed
of a Public Drinking Water Supply
Reservoir named in § 2.23(H)(1) of this
Part
100
b. Ponds
Greater than or equal to ten (10) acres,
100
Except the following:
50
Boone Lake
Exeter
Central Pond (Turner
Reservoir North)
East Providence
Designated portions of
Flat River Reservoir
Coventry
Echo Lake (Pascoag
Reservoir)
Burrillville and
Glocester
Lake Washington
Glocester
Little Maschaug Pond
Westerly
Lower Sprague
Reservoir
Smithfield
Maple Root Pond
Coventry
Mishnock Lake
West Greenwich
Sand Pond/Little Pond
Warwick
Scott Pond
Lincoln
Tiogue Lake
Coventry
Oak Swamp Reservoir
Johnston
Slacks Reservoir
Smithfield
Spring Lake
Burrillville
c. Ponds
Greater than or equal to one quarter (1/4)
acre and less than ten (10) acres
50
d. Ponds
Less than one quarter (1/4) acre
25
e. Highway
ponds
Any size, located within a highway center
median or a highway entrance or exit ramp
that are not designed as stormwater
treatment systems
25
3.
Vegetated freshwater wetlands and vernal pools within River Protection
Region 1 or River Protection Region 2 are designated the following buffer
zones:
Resource Type
Criteria
Buffer Zone
Width (Feet)
a. Bogs
Any size
100
b. Marshes
Any size
100
Except, a wet meadow or
Phragmites marsh greater
than or equal to one (1) acre;
or
50
Except, a wet meadow or
Phragmites marsh less than
one (1) acre
25
c. Swamps – Evergreen
forested
Greater than or equal to one
(1) acre
100
d. Swamps – with great-
laurel (Rhododendron
maximum)
Greater than or equal to one
(1) acre
100
e. Swamps –
Deciduous forested
Greater than or equal to ten
(10) acres
75
f. Swamps – Shrub
swamp
Greater than or equal to one
(1) acre
75
g. Swamps –
Deciduous forested
Greater than or equal to one
(1) acre and less than ten (10)
acres
50
h. Swamps – Any
Less than one (1) acre
25
i. Vernal pools
Greater than or equal to fifty
percent (50%) undeveloped
vegetated land within one
hundred feet (100’) of its edge
100
Less than fifty percent (50%)
undeveloped vegetated land
within one hundred feet (100’)
of its edge
50
j. Highway wetlands
Any size located within a
highway center median or a
highway entrance or exit ramp
that are not designed as
stormwater treatment systems
25
4.
Rivers within the watersheds of the Public Drinking Water Supply
Reservoirs named in § 2.23(H)(1) of this Part are designated a two
hundred foot (200’) buffer zone.
5.
The following rivers within River Protection Region 1 or River Protection
Region 2 are designated a two hundred foot (200’) buffer zone:
River Name
Municipality
Description
Start
End
Acid Factory
Brook
West Greenwich
Headwaters:
41.64957,
-71.71866
Outlet at
Eisenhower Lake
Adamsville
Brook
Tiverton, Little
Compton
King Road
MA/RI Border
Ashaway
River
Hopkinton
Headwaters:
41.43762,
-71.79151
Confluence with
Pawcatuck River
Bear Brook
Coventry
Harkney Hill Rd.
Crossing: 41.67681,
-71.65409
Outlet at Reynolds
Pond
Bear Brook
Tributary
Coventry
Outlet of unnamed
pond: 41.667,
-71.649
Confluence of Bear
Brook
Beaver River
Exeter, Richmond
Outlet of James
Pond
Confluence with
Pawcatuck River
Big River
West Greenwich
Confluence of the
Congdon River and
Nooseneck River
Outlet at Reynolds
Pond
Blackstone
River
North Smithfield
MA/RI Border at
42.014, -71.553
MA/RI Border at
42.014, -71.543
Blackstone
River
Woonsocket,
Cumberland,
Lincoln
Power line crossing
at 41.987, -71.491
Non-urban and
urban region
boundary at Broad
Street
Branch River
Burrillville
Confluence of the
Chepachet River
and the Clear River
Outlet at
Slatersville
Reservoir
Brandy Brook
Glocester
Outlet of
Burlingame
Reservoir
Outlet at Echo Lake
Breakheart
Brook
Exeter, West
Greenwich
Headwaters:
41.65257,
-71.69632
Confluence with
Flat River
Brushy Brook
Hopkinton
Exeter-Hopkinton
town line
Outlet at Locustville
Pond
Bucks Horn
Brook
Coventry
Headwaters:
41.70469,
-71.71060
Confluence with
Moosup River
Canonchet
Brook
Hopkinton
Headwaters:
41.496, -71.771
Confluence with
Wood River
Carr River
West Greenwich
Outlet of Carr Pond
Confluence with Big
River
Chepachet
River
Burrillville,
Glocester
Outlet of Smith &
Sayles Reservoir
Confluence with
Clear River
Chickasheen
Brook
South Kingstown
Northern Crossing
of Route 2,
Approximately
41.52354,
-71.55326
Confluence with
Usquepaug River
Chipuxet
River
Exeter, South
Kingstown
Outlet of The
Reservoir
Outlet at Worden
Pond
Chockalog
River
Burrillville
MA/RI Border
Confluence with
Nipmuc River
Clear River
Burrillville,
Glocester
Headwaters:
42.00024,
-71.75811
Confluence with
Chepachet River
Coney Brook
West Greenwich
Outlet of Tillinghast
Pond
Confluence with
Kelley Brook
Congdon
River
Exeter, West
Greenwich
Outlet of Millbrook
Pond
Confluence with
Nooseneck River
Diamond
Brook
Richmond
Outlet of Carolina
Trout Pond
Confluence with
Wood River
Dry Arm
Brook
Burrillville
Outlet of Round
Lake
Confluence with
Clear River
Dundery
Brook
Little Compton
Holly Berry Hill
Outlet at Briggs
Pond
Dutemple
Brook
Exeter
Widow Sweets Rd.
Crossing
Confluence with
Fisherville Brook
Factory Brook
Coventry
Outlet of
Eisenhower Lake
Confluence with
Flat River
Fisherville
Brook
Coventry, Exeter
Henry Brown Farm
Rd. Crossing
Confluence with
Sodom Brook
Flat River
Coventry
Confluence of
Negro Sawmill
Brook and Pine
Swamp Brook
Outlet at Flat River
Reservoir
(Johnson's Pond)
Glen Rock
Brook
Richmond, South
Kingstown
Headwaters:
41.54083,
-71.62463
Outlet at Glen Rock
Reservoir
Herring Brook
Burrillville
Outlet of Spring
Lake
Confluence with
Clear River
Kelley Brook
Coventry
Outlet of
Confluence with
Wickaboxet Pond
Wood River
Leland Brook
Burrillville
Jackson
Schoolhouse Rd.
Crossing
Outlet at Wilson
Reservoir
Locke Brook
Exeter
Outlet of Metcalf
Wildlife Marsh
Confluence with
Queen River
Log House
Brook
Hopkinton
Headwaters:
41.543, -71.772
Moscow Brook
McCuster
Brook
Coventry
Victory Falls Rd.
Crossing
Confluence with
Flat River
Mattatuxet
River
North Kingstown
Outlet at Silver
Spring Lake
Outlet at
Pettasquamscutt
River
Meadow
Brook
Richmond
Carolina
Nooseneck Rd.
Northern Crossing
Confluence with
Pawcatuck River
Moosup River
Coventry, Exeter
Clark Pond, Foster
CT/RI Border
Moscow
Brook
Hopkinton
Outlet of Winchek
Pond
Confluence with
Brushy Brook
Mowry Brook
Burrillville
Powerline Crossing:
41.98744,
-71.72239
Confluence with
Clear River
Negro Sawmill
Brook
Coventry
Waterman Hill Rd.
Crossing
Confluence with
Flat River
Nipmuc River
Burrillville
Confluence with
Round Top Brook
and Chockolog
River
Confluence with
Clear River
Nooseneck
West Greenwich
Sharpe St. Crossing
Confluence with
River
Congdon River
Parris Brook
Exeter
Outlet of
Tippecansett Pond
Confluence with
Wood River
Pasquiset
Brook
Charlestown
Outlet of Pasquiset
Pond
Confluence with
Pawcatuck River
Pawcatuck
River
Charlestown,
South Kingstown,
Westerly
Outlet of Worden
Pond
Confluence of
Ashaway River
Pawcatuck
River
Westerly
Confluence with
Ashaway River
Non-urban and
urban region
boundary at Canal
St.; approx. 540
feet south of
intersection with
Arch St.
Perry Healy
Brook
Westerly,
Charlestown
Outlet of Unnamed
Impound in Woody
Hill Mgt. Area
(approx. 41.37671,
-71.73844)
Outlet at Watchaug
Pond
Phillips Brook
West Greenwich
Pond at Elevation
456' Upstream of
Plain Meeting
House Rd.
(Approximately
41.6469,
-71.74053)
Confluence with
Factory Brook
Pine Swamp
Brook
Foster
Pierce Rd. Crossing
Confluence with
Flat River
Poquiant
Brook
Charlestown
Outlet of Watchaug
Pond
Confluence with
Pawcatuck River
Queens Fort
Brook
Exeter
Stony Lane
Crossing
Confluence with
Queen River
Queen River
Exeter
Dead Swamp
(41.61015,
-71.55392)
Outlet at Glen Rock
Reservoir
Quidneck
Brook
Coventry
Outlet of Quidneck
Reservoir
Outlet at Stump
Pond
Raccoon
Brook
West Greenwich
Interstate 95
Southbound
Crossing
Confluence with
Nooseneck River
Reuben
Brown Brook
Exeter
Stony Lane
Crossing
Confluence with
Queens Fort Brook
Roaring Brook
Exeter,
Richmond, West
Greenwich
Interstate 95
Southbound
Crossing
Confluence with
Wood River
Roaring Brook
Coventry
Outlet of Arnold
Pond
Confluence with
Moosup River
Round Top
Brook
Burrillville
MA/RI Border
Confluence with
Nipmuc River
Saugatucket
River
South Kingstown
Headwaters:
41.50671,
-71.48833
Saugatucket Road
Saunders
Brook
Glocester
Headwaters:
41.89360,
-71.73540
Outlet at Keech
Pond
Sherman
Brook
Exeter, South
Kingstown
Hog House Hill Rd.
Crossing
Confluence with
Glen Rock Brook
Sodom Brook
Exeter
Rt. 102 (Ten Rod
Rd.) Crossing
Confluence with
Queen River
Stingo Brook
Glocester
Headwaters:
41.91393,
-71.69894
Confluence with
Chepachet River
Taney Brook
Richmond
Headwaters:
41.478, -71.643
Confluence with
Pawcatuck River
Tomaquag
Brook
Hopkinton
Headwaters:
41.47282,
-71.77506
Confluence with
Pawcatuck River
Turkey
Meadow
Brook
Foster, Coventry
Headwaters:
41.74391,
-71.71160
Confluence with
Negro Sawmill
Brook
Usquepaug
River
Charlestown,
South Kingstown
Outlet of Glen Rock
Reservoir
Confluence with
Pawcatuck River
Warwick
Brook
Coventry
Nelson Capwell Rd.
Crossing
Confluence with
Bucks Horn Brook
West Meadow
Brook
Foster
Headwaters:
41.77496,
-71.74226
Confluence with
Moosup River
Whaley Brook
Coventry, Foster
Headwaters:
41.73285,
-71.67340
Confluence with
Flat River
White Brook
Richmond
Headwaters:
41.48170,
-71.66533
Confluence with
Pawcatuck River
White Horn
Brook
South Kingstown
Rt. 138 Crossing
Confluence with
Chipuxet River
Wood River
West Greenwich,
Exeter,
Charlestown,
Hopkinton,
Richmond
Outlet of Hazard
Pond
Confluence with
Pawcatuck River
6.
The following rivers within River Protection Region 2 are designated a one
hundred fifty foot (150’) buffer zone:
River Name
Municipality
Description
Start
End
Annaquatucket
River
North
Kingstown
Fish Hatchery
Bissel Cove
Blackstone Canal
Lincoln
Divergence from
Blackstone River at
Ashton Dam
Outlet at Scott
Pond
Branch River
North
Smithfield
Outlet of the
Slatersville Reservoir
Confluence with
Blackstone River
Buckeye Brook
Warwick
Non-urban and urban
region boundary at
Warwick Avenue
Tidewater Drive,
Warwick
Cherry Brook
North
Smithfield,
Woonsocket
Headwaters:
41.98166, -71.53613
Non-urban and
urban region
boundary at
Rockland Avenue
Cocumscussoc
Brook
North
Kingstown
Headwaters:
41.58454, -71.48074
Outlet at Wickford
Harbor
Cutler Brook
Glocester
Headwaters:
41.90633, -71.61426
Outlet at Waterman
Reservoir
Dark Entry Brook
Warwick,
East
Greenwich
41*40’57.26”N;
071*28’14.10”W
Confluence with
Bleachery
Pond/Maskerchugg
River
Dry Brook
Johnston
Outlet of Oak Swamp
Reservoir
Confluence with
Pocasset River
Frenchtown
Brook
West
Greenwich,
East
Greenwich
Headwaters:
41.62188, -71.54634
Confluence with
Hunt River
Furnace Hill
Brook
Johnston,
Cranston
Headwaters:
41.79580, -71.55239
Confluence with
Meshanticut
Hardig Brook
Warwick
41*41’19.15”N;
071*31’2.69”W
Outlet at Apponaug
Cove
Harris Brook
Smithfield
Outlet of Harris Pond
Outlet at
Georgiaville Pond
Hunt River
East
Greenwich,
North
Kingstown
Headwaters:
41.61148, -71.50471
Outlet at
Potowomut River
Lockwood Brook
Warwick
Outlet of unnamed
pond at
41*43’15.65”N;
071*23’58.46”W
Confluence with
Old Mill Creek
Maskerchugg
River
Warwick,
East
Greenwich
Headwaters:
41.68193, -71.48196
Outlet at
Greenwich Cove
Meshanticut
Brook
Cranston,
Warwick
Headwaters:41.77353,
-71.47209
Confluence with
the Main Stem of
the Pawtuxet River
Moshassuck
River
Lincoln,
Central
Falls,
Pawtucket,
and
Providence
Wellington Road,
Lincoln
Non-urban and
urban region
boundary at Walker
Street
Pawtuxet River
Main Stem
West
Warwick,
Warwick,
Cranston
Confluence of the
North Branch
Pawtuxet River and
South Branch
Pawtuxet River
Non-urban and
urban region
boundary at Bald
Hill Road
Pawtuxet River
North Branch
Scituate,
Coventry,
Cranston,
West
Warwick
Outlet of Gainer
Memorial Dam
(Scituate Reservoir)
Confluence with
Pawtuxet River
Main Stem
Pawtuxet River
South Branch
Coventry,
West
Warwick,
Warwick
Outlet of Flat River
Reservoir
Non-urban and
urban region
boundary at Main
Street (Rt. 117)
Pawtuxet River
South Branch
West
Warwick
Non-urban and urban
region boundary at
Washington
Secondary Bikeway
Confluence with
Pawtuxet River
Main Stem
Pocasset River
Johnston
Rt. 6, Johnston
Non-urban and
urban region
boundary at
Plainfield Street
Runnins River
East
Providence
Non-urban and urban
region boundary at
Mink St.
Outlet at Barrington
River
Sandhill Brook
North
Kingstown
Outlet of Sawmill Pond
Confluence with
Hunt River
Saugatucket
River
South
Kingstown
Saugatucket Road
Outlet at Point
Judith Pond
Simmons Brook
Johnston
Outlet of Simmons
Reservoir
Non-urban and
urban region
boundary at Mill
Street
Sin and Flesh
Brook
Tiverton
Industrial Way,
Tiverton
Highland Rd,
Tiverton
Tarkiln Brook
Burrillville,
Glocester,
North
Smithfield
Outlet of Nichols Pond
Outlet at
Slatersville
Reservoir
Ten Mile River
East
Providence,
Pawtucket
MA/RI Border
Non-urban and
urban region
boundary at
Pawtucket Ave.
Tuscatucket
Brook
Warwick
Non-urban and urban
region boundary at
West Shore Rd
Outlet at Brush
Neck Cove
West River
North
Providence,
Providence,
Lincoln,
Smithfield
Greenwood Lane,
Lincoln
Non-urban and
urban region
boundary at
Mineral Spring
Ave.
Woonasquatucket
River
Smithfield,
North
Providence,
Providence,
Johnston
Headwaters:
41.95183, -71.55528
Non-urban and
urban region
boundary at Smith
Street (Rt. 44)
7.
All rivers within River Protection Region 1 that are not identified above in
§§ 2.23(H)(4) or (5) of this Part are designated a one hundred fifty foot
(150’) buffer zone.
8.
All rivers within River Protection Region 2 identified by the Department as
cold water fisheries are designated a one hundred fifty foot (150’) buffer
zone.
9.
All other rivers within River Protection Region 2 that are not identified
above in §§ 2.23(H)(4), (5), (6) or (8) of this Part are designated a one
hundred foot (100’) buffer zone.
10.
All streams in River Protection Region 1 or River Protection Region 2 are
designated a one hundred foot (100’) buffer zone.
I.
Designated Buffer Zones in the Urban Region
1.
The following ponds within the urban region are designated a fifty foot
(50’) buffer zone:
Name
Location
a. Blackamore Pond
Cranston
b. Canada Pond
Providence
c. Davol Pond
North Kingstown
d. Fenner Pond
Cranston
e. Mashapaug Pond
Providence
f. Omega Pond
East Providence
g. Posnegansett Pond
Warwick
h. Print Works Pond
Cranston
i. Randall Pond
Cranston
j. Roger Williams Park Ponds
Providence
k. Sand Pond (No. of Airport)
Warwick
l. Spectacle Pond
Cranston
m. Three Ponds
Warwick
n. Turner Reservoir (South)
East Providence
o. Warwick Pond
Warwick
2.
All other ponds, including highway ponds, in the urban region are
designated a twenty-five foot (25’) buffer zone.
3.
Vegetated freshwater wetlands and vernal pools in the urban region are
designated the following buffer zones:
Resource Type
Criteria
Buffer Zone
Width (Feet)
a. Bogs
Any size
100
b. Marshes
Any size
100
Except, a wet meadow or
Phragmites marsh greater than
or equal to one (1) acre; or
50
Except, a wet meadow or
Phragmites marsh less than
one (1) acre
25
c. Swamps – Evergreen
forested
Greater than or equal to one
(1) acre
100
d. Swamps – all other
Any size
25
e. Vernal pools
Greater than or equal to fifty
percent (50%) undeveloped
vegetated land within one
hundred feet (100’) of its edge
100
Less than fifty percent (50%)
undeveloped vegetated land
within one hundred feet (100’)
of its edge
50
f. Highway wetlands
Any size located within a
highway center median or a
highway entrance or exit ramp
that is not designed as
stormwater treatment systems
25
4.
The following rivers in the urban region are designated a one hundred fifty
foot (150’) buffer zone:
River Name
Municipality
Description
Start
End
Blackstone
River
Woonsocket
MA/RI Border at
42.015, -71.529
Power line
crossing at
41.987, -71.491
Blackstone
River
Non-urban and
urban region
Outlet to
Seekonk River
Cumberland,
Central Falls,
Pawtucket
boundary at
Broad Street
Pawtuxet
River South
Branch
West Warwick
Main Street (Rt.
117)
Washington
Secondary
Bikeway
5.
The following rivers in the urban region are designated a one hundred foot
(100’) buffer zone:
River Name
Municipality
Description
Start
End
Buckeye
Brook
Warwick
Unnamed tributary
at Airport Road
Non-urban
and urban
region
boundary at
Warwick
Avenue
Cherry Brook
Woonsocket
Non-urban and
urban region
boundary at
Rockland Avenue
Confluence
with the
Blackstone
River
Mill River
Woonsocket
MA/RI Border
Confluence
with
Blackstone
River
Moshassuck
River
Lincoln, Central
Falls,
Pawtucket, and
Providence
Non-urban and
urban region
boundary at
Walker St.
Confluence
with the
Woonasquatu
cket River
Pawcatuck
River
Westerly
Non-urban and
urban region
boundary at Canal
St., approx. five
hundred forty feet
Outlet at Little
Narragansett
Bay
(540’) north of
intersection with
Arch St.
Pawtuxet
River Main
Stem
West Warwick,
Warwick,
Cranston
Non-urban and
urban region
boundary at Bald
Hill Road
Outlet at
Pawtuxet
Cove
Peters River
Woonsocket
MA/RI Border
Confluence
with the
Blackstone
River
Pocasset
River
Cranston,
Johnston
Non-urban and
urban region
boundary at
Plainfield Street
Confluence
with Main
Stem
Pawtuxet
River
Runnins River
Providence,
East Providence
MA/RI Border at
County St.
Non-urban
and urban
region
boundary at
Mink St.
Simmons
Brook
Johnston
Non-urban and
urban region
boundary at Mill
Street
Non-urban
and urban
region
boundary at
Atwood Ave.
Ten Mile River
East
Providence,
Pawtucket
Non-urban and
urban region
boundary at
Pawtucket Avenue
Outlet at
Omega Pond
Tuscatucket
Brook
Warwick
Headwaters:
41.711, -71.432
Non-urban
and urban
region
boundary at
West Shore
Road
West River
North
Providence,
Providence
Non-urban and
urban region
boundary at
Mineral Spring
Avenue
Confluence
with
Moshassuck
River
Woonasquatu
cket River
Smithfield, North
Providence,
Providence,
Johnston
Non-urban and
urban region
boundary at Smith
Street
Confluence
with
Moshassuck
River
6.
All other rivers in the urban region (see § 2.24 of this Part) not identified in
§§ 2.23(I)(4) and (5) of this Part are designated a fifty foot (50’) buffer
zone.
7.
All streams in the urban region (see § 2.24 of this Part) are designated a
fifty foot (50’) buffer zone.
2.24 Freshwater Wetlands Buffer Regions Map
250-RICR-150-15-2
TITLE 250 - DEPARTMENT OF ENVIRONMENTAL MANAGEMENT
CHAPTER 150 - WATER RESOURCES
SUBCHAPTER 15 - WETLANDS
PART 2 - RULES AND REGULATIONS GOVERNING THE ADMINISTRATION AND
ENFORCEMENT OF THE FRESHWATER WETLANDS ACT
Type of Filing: Repeal
Agency Signature
_________________________________________________________________
Agency Head Signature
Agency Signing Date
Department of State
____________________________
Regulation Effective Date
_________________________________________________________________
Department of State Initials
Department of State Date
04/10/2022
March 21, 2022
E-SIGNED by Terrence Gray
on 2022-03-21 11:14:49 EDT
March 21, 2022
E-SIGNED by Department of State
on 2022-03-21 11:19:24 EDT