250 R.I. Code R. 250-RICR-150-15-1.10

Current through November 7, 2024

Section 250-RICR-150-15-1.10 - Application to Alter a Freshwater Wetland

A. Purpose

1. In accordance with R.I. Gen. Laws § 2-1-22(a), an Application to Alter a Freshwater Wetland 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 these Rules.

2. A significant alteration results from a project that:

a. 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;

b. may be detrimental to the basic natural capabilities or values associated with such freshwater wetland; or

c. appears to be random, unnecessary or undesirable.

3. Prior to filing an Application to Alter, an applicant may file a Request for Preliminary Determination to determine whether or not a project appears to represent a significant alteration to freshwater wetlands. The Department recommends that an applicant file a Request for Preliminary Determination prior to filing an Application to Alter, unless the applicant is confident that the project represents a significant alteration to freshwater wetlands.

B. Application Requirements. An applicant seeking a permit for a significant alteration through an Application to Alter a Freshwater Wetland must adhere to the following requirements and submit all written evaluations and documentation as set forth in § 1.10(B)(3) of this Part.

1. Project Scope. An Application to Alter a Freshwater Wetland must include and describe the entire project proposed or contemplated 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; 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. General Provisions. A completed Application to Alter must comply with the general provisions set forth in § 1.7 of this Part as well as the following specific requirements:

a. An original completed application form (See § 1.7(A)(1) of this Part);

b. Site plans which accurately and clearly depict the project and provide, in the opinion of the Department, the correct location, extent, and type of all wetlands within and near the project (§§ 1.7(A)(3) and (4) of this Part);

c. A fee (§§ 1.7(A)(10) and (11) of this Part);

d. Proof of ownership in the form of a current certified copy of the deed of the subject property;

e. Pursuant to R.I. Gen. Laws § 2-1-22(a), 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 map drawn to scale of not less than one inch to one hundred feet (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 wetland alteration(s). 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 wetland alteration boundaries must include at least the following:

(1) The extent of all physical disturbance in regulated wetlands;

(2) The extent of any impoundment or raising of water elevations in wetlands;

(3) The extent of drainage of 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 regulated wetland areas into adjacent properties.

f. All written evaluations and documentation as set forth in § 1.10(B)(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 all wetlands within the project in a manner sufficient for the Department to properly complete its evaluation.

3. Written Documentation and Evaluation. All applicants must provide a written evaluation including a table of contents, a project description, an avoidance and minimization statement, and an evaluation of the wetland functions, values and impacts:

a. The Table of Contents shall list all section titles and their corresponding page numbers.

b. The Project Description shall describe the overall project, including the project size, purpose, location, and type; site history; and overall areas evaluated including nearby roadways and adjacent land uses.

c. The Avoidance and Minimization Statement must satisfy the avoidance and minimization requirements as set forth in § 1.10(B)(4) of this Part.

d. The Evaluation of Functions, Values, and Impacts must describe the evaluation methodology, qualifications of professional(s) performing the evaluation; identification of regulated freshwater wetlands; description of wetland functions, values, and impacts, identification of the proposed measures to reduce such impacts; conclusions; and any literature citations as set forth in § 1.10(B)(5) of this Part.

4. Avoidance and Minimization Requirement

a. Avoidance: All persons must satisfactorily demonstrate to the Department in the form of a written narrative that all probable impacts to freshwater wetlands 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. 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 as a central element of its primary purpose (e.g., a pier);

(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;

(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 wetland 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 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 wetlands;

(5) Whether the applicant has made any attempts (and if so what they were) to avoid alterations to freshwater wetlands by overcoming or removing constraints imposed by zoning, infrastructure, parcel size or the like; and

(6) Whether feasible alternatives that would not alter the natural character of any freshwater wetlands 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 that cannot be avoided, the applicant must satisfactorily demonstrate to the Department in the written narrative that the impact to wetland 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 wetland 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 impact to the wetland;

(3) Whether there are feasible alternative designs, layouts, densities or technologies, that would result in less impact to the wetland while still achieving the project purpose; and

(4) Whether reduction in the scale or relocation of the proposed project to minimize impact to the wetland would result in adverse consequences to public health, safety or the environment.

c. Mitigation Measures: Measures, methods, or best management practices to avoid alterations of and minimize impacts to wetlands are described in § 1.9(B)(1)(d) ((3)) of this Part.

5. Evaluation of Wetland Functions, Values, and Impacts. All applicants must describe those functions and values provided and maintained by the subject freshwater wetland; describe and assess any anticipated impacts to the wetland's 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 to the maximum extent possible. This written evaluation must clearly and fully explain how the proposed project complies with the applicable review criteria set forth or referred to in § 1.10(E) of this Part and must describe the evaluation methodology, the qualifications of persons involved in the evaluation, and must describe all freshwater wetlands.

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 wetland functions and values and impacts may require input by more than one qualified professional consultant or more than one individual familiar with the specific functions or values of the wetland. 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. Freshwater Wetlands: Describe all freshwater wetlands on-site as well as any off-site wetlands that are hydrologically connected to the on-site wetland(s) and identify all wetlands evaluated, including any areas of potential impact associated with the project within freshwater wetlands.

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) Wetland Characteristics. Provide the size of the 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) or, if a pond, special aquatic site or watercourse, the dominant aquatic vegetation; identify and describe any standing or flowing water bodies, water quality, nearby land uses within one hundred and fifty feet (150') of the edge of the subject wetlands; and identify the wetland(s) which are hydrologically connected to the on-site wetland(s) with distances between 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) Wetland Values. Identify and describe the current and potential ability of the wetlands to provide or maintain the functions and values as defined herein 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 wetland 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) Wetland Characteristics. Provide the size of the wetland(s), and describe topography, soils, hydrology, dominant plant communities and vegetation in each stratum (i.e., tree, shrub, and herbaceous layers), or if a pond or watercourse, the dominant aquatic vegetation; identify and describe any standing or flowing water bodies, water quality, nearby land uses within one hundred and fifty feet (150') from the edge of the subject wetland(s), and identify the wetland(s) which are hydrologically connected to the on-site wetland(s) with distances between wetlands provided. Also, identify and describe the location of the wetland(s) and the availability of public access and viewing sites;

(BB) Wetland Values. Identify and describe the current and potential ability of the wetland 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 wetland's recreational and aesthetic values and any potential reduction in the wetland's current or potential ability 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; wetland'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 wetland's functions and values as a rare 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; describe the drainage characteristics of any surface water flows 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 100-year frequency storm flood event. Include a map which delineates the watershed of: the site of the project; any wetlands receiving water from the site of the project; and any off-site wetlands which may be impacted by the project.

(BB) Wetland Values. Identify and describe the wetland functions and values as defined herein relating to the ability of the wetland to temporarily store or meter out flood waters from storm events, and to accommodate surface water and drainage through or within the wetland under pre-project conditions.

(CC) Analysis of Proposed Impacts.

(i) Projects proposing changes in run-off towards freshwater wetlands: Submit a stormwater analysis for pre- and post-project runoff rates based upon the 1-year, 10-year, and 100-year, 24-hour, Type III storm events. The analysis must be performed using the methodologies as allowed and contained in the RISDIS Manual, 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 wetland functions and values as defined herein. Describe the anticipated impacts to the wetlands using supporting calculations, data, diagrams, graphs, and observations.

(ii) Projects proposing changes in drainage characteristics of freshwater wetlands or affecting the wetland's ability to store, meter out, or reduce the impacts of flooding and flood flows: Identify and describe all project components that may decrease the wetland's flood storage capacity, decrease the wetland's ability to meter out flood waters, or decrease the wetland's 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 wetland functions and values as defined herein. 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 1-year, 10-year, and 100-year, 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 flood plain or area subject to flooding may provide compensatory flood storage in order to comply with the review criteria as set forth in § 1.10(E) 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;

(ii) The compensation area must have an unrestricted hydraulic connection to the affected wetland 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) Compensatory storage must precede 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 other freshwater wetland functions and values have been mitigated.

(4) Groundwater and Surface Water Supplies

(AA) Drainage Characteristics. Identify and describe the current drainage characteristics, including both surface and groundwater flows, within and to any wetland(s) 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 wetland(s) 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 wetlands receiving water from such site; and any off-site wetlands which may be impacted by the project.

(BB) Wetland Functions and Values. Identify and describe the wetland's functions and values as defined herein 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 wetland(s), 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 wetland functions and 9values. Describe the anticipated impacts to the wetland 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 wetlands that may be impacted by the project.

(BB) Wetland Functions and Values. Identify and describe the wetland's functions and values as defined herein relating to water quality; and describe the present water quality classification of any water body as set forth in the most recent edition of the Rhode Island Department of Environmental Management 305(b) Report, State of the State's Waters. Include a description of the water quality conditions of all freshwater wetlands within the project area, as well as any off-site wetlands that may be affected by the project.

(CC) Water Quality Analysis.

(i) As may be required in accordance with the latest version of the RISDIS Manual, 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 RISDIS Manual, 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), that is, in excess of those typically found in stormwater runoff, including, but not limited to, industrial operations, chemical manufacturing, waste processing facilities, plant nurseries, other land uses involving use of fertilizers, herbicides, pesticides, for both pre- and post-project conditions by utilizing one 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 wetland's ability to retain or remove nutrients; or by withdrawing water from or near any wetlands. Identify and describe the impacts the proposed project may have upon all wetland functions and values as defined herein. Describe the anticipated impacts to the wetland(s) 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 wetland functions and values and meet the review criteria as set forth in § 1.10(E) of this Part. The written evaluation must include supporting calculations, data, figures, diagrams, graphs and observations.

e. Conclusion. Identify and detail how the project meets the review criteria as set forth in § 1.10(E) 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.

6. Compliance with Water Quality Regulations. Applicants must comply with the Department's Water Quality Regulations, Subchapter 05 Part 1 of this Chapter. A separate application is not required unless specified in said Regulations.

C. Completeness Determination. Prior to the public notice of any Application to Alter Freshwater Wetlands, the Department will review the application to determine whether or not it is a completed application for public notice purposes only (see § 1.10(B)(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.

D. Public Notice and Participation - Public Hearings

1. Public Notice

a. Notice: An Application to Alter a Freshwater Wetland shall be publicly noticed in accordance with R.I. Gen. Laws § 2-1-22(a).

b. 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) days thereafter.

c. Notice for Public Comment - Delivery: Notice of the application shall be made by first class 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.

d. In the case of a full or partial removal of a dam as described in § 1.7(A)(2)(c) 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 § 1.10(D)(1)(b) of this Part.

2. Content

a. Notice for Public Comment:

(1) 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 wetland area(s) 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.

(2) The Department shall furnish the notice, one full-size copy of the site plans, and a copy of one completed application form as provided by the applicant 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.

b. Public Notice - Disclaimer: Notice of the application is not a notice of approval or any intent by the Department to approve or permit the project.

c. Review During Public Notice: The Department will not make a decision on an application as to whether any wetland alteration is random, unnecessary, or undesirable during the public notice period.

3. Public Comments

a. Comments filed with the Department under the provisions of R.I. Gen. Laws § 2-1-22 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.

b. 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.

c. The Department shall determine whether a comment is an objection of a substantive nature pursuant to R.I. Gen. Laws § 2-1-22(b). In accordance with 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:

(1) relates to the functions and values of the wetlands;

(2) has not been clearly addressed by the applicant in his or her application;

(3) has not been assessed by the Department during its review of the application; and

(4) cannot be resolved by the Department's evaluation of the application.

d. If a comment is determined to be a substantive objection, the applicant will be so notified by certified mail. The applicant may then withdraw his or her application or, if she or he 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 (§§ 1.7(A)(10) and (11)(i) ((1)) 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.

e. An objector may withdraw, in writing, his or her 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.

f. An applicant may withdraw, in writing, his or her 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.

4. City or Town Disapproval

a. Pursuant to R.I. Gen. Laws § 2-1-21(a), the Department may not approve an application which is disapproved by the city or town.

b. In accordance with R.I. Gen. Laws § 2-1-21(a), the Department shall consider the application disapproved by the city or town when the Department receives a letter which informs the Department that the city or town council has voted to disapprove the application within the forty-five (45) day comment period by objecting to; opposing; vetoing; or denying the project as noticed by the Department. The Department will not consider any conditional or otherwise unclear responses by the city or town to constitute a disapproval. Any comment received from a city or town council that does not represent a disapproval shall be reviewed to determine whether or not the comment is a substantive objection.

c. When in receipt of a city or town disapproval, the Department shall render a decision which either:

(1) Denies the application based solely on the disapproval issued by the city or town; or

(2) Denies the application based upon the Department's own evaluation and findings in conjunction with the disapproval issued by the city or town.

d. Any request made by the applicant to the Department to modify an application or site plans in accordance with negotiations held between the city or town and the applicant shall require a new application to the Department.

e. In accordance with R.I. Gen. Laws § 2-1-21, the Department is not precluded from granting an approval of alterations of wetlands relating to a highway project proposed by the Rhode Island Department of Transportation which has been submitted under a single application, despite city or town disapproval, when such state highway project passes through or crosses two or more municipalities, as reflected in the application to the Department. However, in the event that the city or town disapproves of an Application to Alter Freshwater Wetlands relating to a state highway project which is proposed to take place within only one municipality, the Department may not approve such application and will treat such application in accordance with this Rule regardless of whether or not additional applications have been or will be filed which extend the project into more than one municipality.

5. Public Hearings

a. When necessary, in accordance with R.I. Gen. Laws § 2-1-22, the Department will hold public hearings on proposed alterations to wetlands when a request for such hearing is made in accordance with § 1.10(D)(3)(d) 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 wetland. Such hearings are not adjudicatory, evidentiary hearings, but they are held to obtain comments to assist the Department in its review of the application.

b. 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.

c. The time of hearing shall be designated by the Department.

d. The presiding officer of a public hearing shall be the Department's or the Director's designee.

E. Review Criteria

1. The Department will evaluate all projects to determine the extent to which the proposed project will have an impact, either individually or cumulatively, upon wetland functions or values as described in this Rule.

2. All such projects shall:

a. Be subject to all of the review criteria contained herein and must incorporate those best management practices, best available technologies, and any maintenance or inspection schedules necessary to comply with the applicable criteria;

b. Not adversely affect any wetland so as to cause any of the impacts identified in § 1.10(E)(3) of this Part; and

c. Shall not result in any random, unnecessary or undesirable alteration of freshwater wetland.

3. Before issuing a permit, the Department must be satisfied that a proposed project or alteration will not result in:

a. Significant reduction in the overall wildlife production or diversity of a wetland;

b. Significant reduction in the ability of a wetland to satisfy the needs of a particular wildlife species;

c. Significant displacement or extirpation of any wildlife species from a wetland or surrounding areas due to the alteration of the wetland;

d. Any reduction in the ability of the wetland to ensure the long-term viability of any rare animal or rare plant species;

e. Any degradation in the natural characteristic(s) of any rare wetland type;

f. Significant reduction in the suitability of any wetland 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;

g. Any more than a minimal intrusion of, or increase in, less valuable, invasive or exotic plant or animal species in a wetland;

h. Significant reduction in the wildlife habitat functions and values of any wetland 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;

i. Significant reduction in overall current or potential ability of a wetland to provide active or passive recreational activities to the public;

j. Significant disruption of any on-going scientific studies or observations;

k. 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;

l. 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 wetland functions and values;

m. 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;

n. Significant loss of important open space or significant modification of any uncommon geologic or archaeological features;

o. Significant modification to the natural characteristics of any wetland area of unusually high visual quality;

p. Any decrease in the flood storage capacity of any freshwater wetland which could impair the wetland's ability to protect life or property from flooding or flood flows;

q. Significant reduction of the rate at which flood water is stored by any freshwater wetland during any flood event;

r. Restriction or significant modification of the path or velocities of flood flows for the 1-year, 10-year, or 100-year frequency, 24-hour, Type III storm events so as to cause harm to life, property, or other functions and values provided by freshwater wetlands;

s. 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;

t. Any increase in run-off rates over pre-project levels or any increase in receiving water/wetlands peak flood elevations for the 1-year, 10-year, or 100-year frequency, 24-hour, Type III storm events which could impair the wetland's ability to protect life or property from flooding or flood flows;

u. Any increase in run-off volumes and discharge rates which could, in any way, exacerbate flooding conditions in flood-prone areas;

v. Significant changes in the quantities and flow rates of surface or groundwater to or from isolated wetlands (e.g., those wetlands without inflow or outflow channels);

w. Placement of any structural best management practices within wetlands, or proposal to utilize wetlands as a detention or retention facility;

x. Any more than a short-term decrease in surface water or groundwater elevations within any wetland;

y. Non-compliance with the Rhode Island Department of Environmental Management Water Quality Regulations, Subchapter 05 Part 1 of this Chapter; or

z. Any detrimental modification of the wetland's ability to retain or remove nutrients or act as natural pollution filter.

F. Decision on Application to Alter Freshwater Wetlands

1. General

a. 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 to Alter within 42 days after the end of the 45-day public comment period or, if applicable, the public hearing, both of which are described above.

b. Applicants shall be notified in writing of the Department's decision by registered mail. The Department shall notify applicant's attorney or other designated representative, if any, by first class 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 if the objector provides the Department with a mailing address.

2. Decision to Deny

a. In accordance with R.I. Gen. Laws § 2-1-21, approval of a proposed alteration to any wetland will be denied by the Department if the project as proposed does not satisfy the review criteria 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.

b. The decision to deny approval shall be in the form of a letter which will state the reasons for denial.

3. Decision To Permit. The Department shall issue a permit for an application which, in the opinion of the Department, does satisfy the review criteria contained herein and does not represent a random, unnecessary, or undesirable alteration of freshwater wetlands. 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.

G. Permit Requirements and Conditions

1. Conditions and terms of the permit may require modification of portions of the project, as described by plans provided by the applicant.

2. 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.

3. A copy of the permit letter and one 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.

4. 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.

5. Unless otherwise ordered by the Department, or renewal of a permit is obtained, or tolled pursuant to R.I. Gen. Laws § 42-17.1-2.5, all permits issued under an Application to Alter application are limited to a period of one (1) year from the date of issuance and shall expire thereafter. Pursuant to R.I. Gen. Laws §42.17.1-2.5, permits relating to the development of property that were in effect on November 9, 2009 are subject to tolling pursuant to R.I. Gen. Laws § 42-17.1-2.5 and shall be valid an additional 2060 days after the one (1) year period established above. Permits that relate to the development of property issued between November 9, 2009 and June 30, 2015 are subject to tolling pursuant to R.I. Gen. Laws § 42-17.1-2.5 and shall be valid until July 1, 2016.

6. Except for permits eligible for tolling pursuant to R.I. Gen. Laws § 42-17.1-2.5, 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; provided, however, said 4-year period will be extended one additional year, if the original permittee or subsequent transferee can satisfactorily demonstrate to the Department that the permitted wetland alteration is being carried out in strict accordance with the permit and with these Rules, and that the alteration can be completed in a period of one (1) additional year or less. Pursuant to R.I. Gen. Laws §42.17.1-2.5, permits relating to the development of property that were in effect on November 9, 2009 are subject to tolling pursuant to R.I. Gen. Laws § 42-17.1-2.5 and shall be valid an additional 2060 days after the one (1) year period established above. Permits that relate to the development of property issued between November 9, 2009 and June 30, 2015 are subject to tolling pursuant to R.I. Gen. Laws § 42-17.1-2.5 and shall be valid until July 1, 2016. Permits may be renewable prior to expiration in accordance with this paragraph. The effect of tolling on eligible permits is limited to extending the period of validity of the current permit or renewal only. Any renewal must be requested by Application for Renewal that meets the requirements of § 1.11(B) of this Part.

7. Construction activities affecting freshwater wetlands 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.

8. 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 and the permittee or subsequent transferee is required to notify the Department in writing of the completion of the permitted activities.

9. 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.

10. When required by permit condition, 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.

H. Compliance. In accordance with R.I. Gen. Laws § 2-1-22(d), the applicant may only proceed with the approved project within freshwater wetlands in strict compliance with such terms and conditions, including time of completion, as the Department may require to ensure the protection of freshwater wetlands 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.

I. Appeal of Decisions

1. Request for Appeal. Within thirty (30) days of the receipt of a decision from the Department regarding an Application to Alter Freshwater Wetlands, 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 the Freshwater Wetlands Program and with the Office of Legal Services. Any request for an adjudicatory hearing on an application must be accompanied by a fee as specified in §§ 1.7(A)(10) and (11)(i) ((2)) 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.

2. Adjudicatory Hearings

a. Applicable Rules: Following an appeal of a decision regarding an Application to Alter Freshwater Wetlands, 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 AAD Rules of Practice and other governing laws, Rules and Regulations adopted by the Department.

b. Burden of Proof: It shall be the applicant's burden to demonstrate by a preponderance of the evidence that the application, 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.

3. 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 wetlands and the functions and values they provide.

J. Negotiated Settlements - Consent Agreements

1. 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.

2. A proposed resolution will be considered a substantial modification of the original project when the wetland alterations contemplated by such resolutions are:

a. proposed in different areas of the wetland(s) so as to require public notice to additional or new parties as set forth in R.I. Gen. Laws § 2-1-22; or

b. proposing impact(s) which were not evaluated by the Department pursuant to its review of the original application.

3. When a proposed resolution represents only a reduction or elimination of wetland alterations from those proposed in the original application, such proposed resolution will not be considered a substantial modification.

4. Any request by the applicant to submit revised plans in accordance with settlement negotiations shall require a fee §§ 1.7(A)(10) and (11)(h) 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.

K. Closing of an Application

1. An Application to Alter Freshwater Wetlands shall be considered closed under the following circumstances:

a. 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;

b. 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;

c. 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 § 1.7(A)(2)(e) of this Part within sixty (60) days;

d. 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

e. Upon receipt of notification from the applicant that authorization for a public hearing has been withdrawn (§ 1.10(D)(3)(f) of this Part).

250 R.I. Code R. 250-RICR-150-15-1.10